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THE    AMERICAN  PUBLISHERS' 
COPYRIGHT  LEAGUE 

William  W.  Appleton,  President  Charles  Scribner,  Treasurer 

Geo.  Haven  Putnam,  Secretary  Stephen  H.  Olin,  Counsel 

Executive  Committee: 
J.  Henry  Harper,  A.  F.  Houghton,  Craige  Lippincott,  Henry  Holt, 
Dana  Estes,    F.  H.  Dodd,     Albert  Smith  (of  Manzi^  Joyant  fir»  Co.") 


The  American  Publishers'  Copyright  League  was  instituted  in  1886,  its 
organization  constituting  practically  a  continuation  of  the  earlier  Publishers' 
Copyright  Association.  The  general  purpose  of  the  League  was  to  give 
consideration  to  the  interests  of  authors  and  publishers  in  the  protection  of 
literary  property,  and  to  take  immediate  action  in  securing  the  enactment 
by  Congress  of  an  international  copyright  measure,  the  work  in  behalf  of 
which  had  been  begun  as  far  back  as  1837. 

The  international  provisions  of  the  present  copyright  statute  were 
secured  by  the  bill  of  March,  1891.  During  the  thirteen  years  since  that 
date,  it  has,  however,  been  found  that  continued  watchfulness  and  frequent 
action  were  required  not  only  for  the  purpose  of  preserving  the  international 
features  of  the  present  statute,  but  also  to  protect  domestic  copyright 
against  so-called  "  amendments,"  which  would  have  had  undesirable  and  un- 
satisfactory results.  It  has  also  proved  important  to  secure  the  enactment 
from  time  to  time  of  certain  amendments  to  the  statute  for  the  better  pro- 
tection of  the  producers  of  literary  property.  The  Executive  Committee 
of  the  League  have  utilized  the  services  of  the  Secretary  and  of  its  Counsel 
for  such  action  as  was  required  in  Washington  for  these  purposes.  Further 
work  in  this  direction  will  be  required  before  a  copyright  statute  can  be 
secured  consistent  in  its  provisions  and  satisfactory  in  its  working.  For  the 
supervision  of  this  work,  the  maintenance  of  the  Copyright  League  is 
important. 

The  members  of  the  League  are  at  liberty  to  make  application,  through 
the  Secretary,  to  the  Counsel  of  the  League,  Stephen  H.  Olin,  Esq.,  for 
opinions  regarding  the  interpretation  of  the  copyright  statute,  or  the  effect 
of  decisions  of  the  Solicitor  General,  or  of  opinions  of  the  Register  of 
Copyrights. 

Publishers  of  books,  music,  and  works  of  art,  and  dealers  in  books, 
music,  and  works  of  art  are  eligible  for  membership  in  the  League.  Each 
firm  may  be  represented  at  the  meetings  of  the  League  by  any  partner 
delegated  for  the  purpose. 

Representatives  of  European  Houses  which  are  carrying  on  publishing 
business  in  this  country  are  eligible  for  membership. 

The  annual  dues  are  Ten  Dollars. 

Office  of  the  Secretary, 
27  AND  29  West  23b  Street,  New  York. 


PUBLICATIONS   OF 

THi:   AMERICAN    PUBLISHERS' 

COPYRIGHT    LEAGUE 


1.  Opinions  on  Questions  of  Copyright 

And  on  the  Interpretation  of  the  Copyright  Statute  of 
the  United  States 
Secured  for  the  information  of  the  Members  of  The  Ameri- 
can Publishers'  Copyright  League  from  the  Solicitor  General, 
the  Register  of  Copyrights,  and  the  Counsel  of  the  League, 
1895-1902.  Together  with  a  list  of  the  bills  introduced  dur- 
ing the  same  period  for  the  Amendment  of  the  Copyright 
Statute. 

Octavo,  paper,  as  cents 

2.  Copyright  Cases  and  Decisions 

A  Summary  of  the  Leading  American  Decisions  on  the 
Law  of  Copyright,  and  on  Literary  Property,  from  1891  to 
1903,  together  with  a  selection  of  recent  Copyright  Decisions 
of  the  Courts  of  Great  Britain  and  Canada,  and  the  Text  of 
the  United  States  Copyright  Statute. 

Compiled  by  Arthur  S.  Hamlin 

Octavo,  cloth,  net,  S2.00  Full  sheep,  net,  S3, SO 


G. 

New  YorK 


P.    PUTNAM'S    SONS 


xoncion 


COPYRIGHT   CASES 

A  Summary  of  Leading  American  Decisions  on  the  Law  of  Copyright 
and  on  Literary  Property,  from  1891  to  1903  ;  Together  with  the 
Text  of  the  United  States  Copyright  Statute,  and  a  Selec- 
tion of  Recent  Copyright   Decisions  of  the 
Courts  of  Great  Britain  and  Canada 


COMPILED  BY 

ARTHUR  S.  HAMLIN 


•        •  •     •  ••   ^m^    •  •,     t^   • 

••      •  •     *»      •       ••••»•• 

•  »••  ••  ,,*••      ••• 


PUBLISHED   FOR 

The  American  Publishers'  Copyright  League 

BY 

G.  p.  Putnam's  Sons 

New  York  and  London 
1904 


Copyright,  1904 

BY 

G.  P.  PUTNAM'S  SONS 


Published,  July,  1904 


k> 


^'t- 


^^y'^ 


'TIbe  ItnfcfterbocRer  press,  l^ew  ]}orlt 


Introduction. 

The  purpose  of  this  compilation  is  to  bring  together, 
for  convenient  reference  on  the  part  of  pubHshers, 
authors,  and  others  interested  in  copyright  property, 
a  summary,  as  comprehensive  as  is  practicable  in  a 
volimie  of  such  compass,  of  the  issues  that  have  arisen 
and  the  decisions  that  have  been  given  under  the 
statutes  controlling  copyright  and  literary  property, 
since  the  enactment  of  the  International  Copyright 
Law  of  189 1. 

The  collection  includes  reports  of  all  decisions  ren- 
dered by  American  courts  since  that  date,  excepting 
those  that  related  merely  to  matters  of  practice  or  of 
pleading.  It  has  been  the  intention  to  group  together 
a  series  of  cases  which,  as  summarized,  present  some- 
thing more  than  a  mere  digest  of  the  legal  principles 
involved  but  which  do  not  call  for  the  space  that  it 
would  have  been  necessary  to  devote  to  decisions  re- 
ported in  full.  The  book  is  addressed  to  the  layman 
rather  than  to  the  lawyer ;  and  it  is  on  this  grotmd  that 
such  cases  or  such  portions  of  cases  as  have  to  do 
merely  with  the  technicalities  of  procedure  are  omitted. 
For  convenience  of  reference,  the  text  of  the  United 
States'  statutes  on  copyright  in  force  on  the  ist  of 
January,  1904,  has  been  included. 

The  compiler  has  also  included  a  selection  of  certain 
English  cases  of  recent  date  which  present  matters 
likely  to  prove  of  interest  to  American  publishers  and 
authors.  The  plan  and  scope  of  the  compilation  ren- 
dered  it   impracticable  to  include  in  it  any  general 


MiS8262 


iv  Introduction 

collection  of  foreign  cases.  In  addition  to  the  court 
decisions,  the  volume  presents  a  brief  summary  of  the 
recent  decisions  of  the  Treasury  Department  bearing 
upon  the  importation  under  the  copyright  law,  of 
books  and  works  of  art,  as  in  the  absence  or  in  advance 
of  judicial  decisions,  such  rulings  constitute  the  highest 
authority  upon  the  questions  with  which  they  are  con- 
cerned. The  editor  has  not  imdertaken  (except  in  one 
or  two  instances)  to  add  to  the  conclusions  arrived  at 
or  the  principles  laid  down  by  the  courts.  It  has 
seemed  sufficient  to  connect  together  by  references  the 
various  decisions  that  have  relation  to  each  other  and 
to  indicate  any  cases  in  which  conflicts  or  inconsis- 
tencies might  seem  likely  to  result  from  the  rulings  of 
courts  with  different  jurisdictions. 

If  the  voltime  thus  shaped  may  prove  of  any  service 
in  directing  public  opinion  towards  the  inadequacies, 
the  inequalities,  and  the  incongruities  which  character- 
ize the  provisions  of  the  present  copyright  law  of  the 
United  States,  the  labor  involved  in  its  preparation 
will  be  well  repaid. 

The  editor  takes  this  opportimity  of  expressing  his 
own  cordial  approval  of  a  suggestion  that  has  been 
made  more  than  once  by  authors  and  others  interested, 
in  regard  to  the  necessity  for  a  thorough  revision  or 
reshaping  of  our  copyright  statute.  He  is  in  accord 
with  the  recommendation  that  the  framing  of  a  satis- 
factory copyright  act  which  shall  have  for  its  purpose 
an  equitable  and  adequate  protection  for  the  producers 
of  intellectual  property  and  which  shall  be  so  worded 
as  to  carry  out  that  purpose  effectively,  should  be 
entrusted  to  a  commission  of  experts.  Such  a  com- 
mission should  comprise  representatives  of  the  several 
interests  to  be  considered :  producers  of  works  of  litera- 


Introduction  v 

ture,  of  art,  and  of  music,  publishers  of  works  of  art,  of 
books,  and  of  newspapers.  The  commission  should 
also  include  a  skilled  copyright  lawyer  and  it  might  be 
in  order  to  add  some  representative  of  the  general 
public  who  would  have  no  direct  property  interests  in 
the  results  of  such  a  bill  as  may  be  framed.  As  such  a 
commission,  possessing  the  requisite  authority,  would 
naturally  be  constituted  under  an  Act  of  Congress,  it 
would  also,  according  to  the  usual  routine,  include 
representatives  of  the  Senate  and  of  the  House  of 
Representatives.  All  existing  copyright  statutes  of" 
the  world,  excepting  that  of  the  United  States,  have 
been  the  work  of  commissions  of  expert^.  The  mem- 
bers of  these  commissions  have  had  authority  to  sum- 
mon witnesses  and  to  take  testimony,  and  after  having 
devoted  sufficient  time  to  the  mastery  of  the  details  of 
a  subject  which  is  of  necessity  complex  and  which 
certainly  calls  for  expert  training  and  for  expert  ex- 
perience, they  have  presented  their  conclusions  in  the 
form  of  a  report  containing  the  specifications  of  the 
legislation  recommended.  The  copyright  laws  of 
the  states  of  Europe  have,  without  an  exception,  been 
based  upon  such  recommendations.  With  the  co-opera- 
tion of  such  a  commission,  it  ought  to  prove  practicable 
to  secure  a  copyright  statute  which  should  give  due 
consideration  to  all  the  interests  involved  and  which 
should  be  sufficiently  consistent  in  its  provisions  to 
obviate  the  necessity  of  the  large  proportion  of  copy- 
right issues  that  have  arisen  from  the  -unnecessary 
complexity  of  the  provisions  of  the  existing  statute  and 
from  the  difficulty,  and  in  some  cases  the  impractica- 
bility, of  fulfilling  the  obligations  imposed  by  this 
statute.  A.  S.  H. 

New  York,  April  15,  1904. 


Contents. 


The  United  States  Copyright  Statutes 


PAGB. 

I 


II. 

Decisions  op  American  Courts 

Section  i :  Articles  Entitled  to  Copyright  . 
"      2:  Formalities  in  Obtaining  Copyright 
"      3:  Notice  of  Copyright  . 

4:  Publication  and  its  Effects 
**      5 :  Property  Rights  and  their  Transfer 
"      6 :  Infringements  and  Unfair  Use   . 
**      7 :  Remedies  and  Penalties     . 


19 
21 

48 
61 

77 
96 

124 

158 


III. 
Decisions  of  the  Treasury  Department 


173 


IV. 

Decisions  of  English  and  Canadian  Courts  .  181 
Section  I :  Articles  Entitled  to  Copyright  .  .183 
'*  2:  Who  are  Entitled  to  Copyright .  .190 
"  3:  Property  Rights  and  their  Transfer  .  200 
"  4:  Infringement  .....  209 
"      5:  Remedies 217 

V. 

List  of  Cases 221 

VI. 
Index 231 


I. 

The  Copyright  Law  of  the 
United  States 

In  Force  January,  1904 

Being  the  Revised  Statutes  of  the  United  States,  Tide  60,  Chapter  3 
(1874),  as  Amended  by  the  Acts  Approved  June  18,  1874; 
August  I,  1882;  March  3,  1891;  March  3,  1893;  March  2, 
1895;  January  6,  1897;  February  19,  1897,  and  March  3,  1897 


I. 

The  Copyright  Law  of  the  United 
States.* 

§  4948.  All  records  and  other  things  relating  to 
copyrights  and  required  by  law  to  be  preserved  shall  be 
under  the  control  of  the  Librarian  of  Congress,  and 
kept  and  preserved  in  the  Library  of  Congress.     [....] 

[The  Appropriation  Act  approved  February  19,  1897, 
provides  for  the  appointment  of  a  "Register  of  Copy- 
rights, who  shall,  on  and  after  July  first,  eighteen 
hundred  and  ninety-seven,  under  the  direction  and  su- 
pervision of  the  Librarian  of  Congress,  perform  all  the 
duties  relating  to  copyrights,  and  shall  make  weekly 
deposits  with  the  Secretary  of  the  Treasury,  and  make 
monthly  reports  to  the  Secretary  of  the  Treasury  and  to 
the  Librarian  of  Congress,  and  shall,  on  and  after  July 
first,  eighteen  himdred  and  ninety-seven,  give  bond  to 
the  Librarian  of  Congress,  in  the  sum  of  twenty  thou- 
sand dollars,  with  approved  sureties,  for  the  faithful 
discharge  of  his  duties."] 

§  4949.    The    seal  provided  for  the  office  of  the 

Librarian  of  Congress  shall  be  the  seal  thereof,  and  by  it 

all  records  and  papers  issued  from  the  office,  and  to  be 

used  in  evidence,  shall  be  authenticated. 

*  The  text  of  the  United  States  copyright  statutes  is  here  re- 
printed from  the  compilation  of  the  Revised  Statutes  relating  to 
copyrights,  with  all  subsequent  enactments  to  1904,  as  prepared  by 
Mr.  Thorvald  Solberg,  Register  of  Cop3rrights. 

3 


4      Copyright  Law  of  the  United  States 

§  4950.     [ ]     The  Appropriation  Act  approved 

February  19,  1897,  provides:  "The  Librarian  of  Con- 
gress shall,  on  and  after  July  first,  eighteen  hundred  and 
ninety-seven,  give  bond,  payable  to  the  United  States, 
in  the  sum  of  twenty  thousand  dollars,  with  sureties  ap- 
proved by  the  Secretary  of  the  Treasury,  for  the  faith- 
ful discharge  of  his  duties  according  to  law.'* 

§  4951.  The  Librarian  of  Congress  shall  make  an 
annual  report  to  Congress  of  the  number  and  descrip- 
tion of  copyright  publications  for  which  entries  have 
been  made  during  the  year. 

§4952.     [ ]     The  author,  inventor,  designer, 

or  proprietor  of  any  book,  map,  chart,  dramatic  or 
musical  composition,  engraving,  cut,  print,  or  photo- 
graph or  negative  thereof,  or  of  a  painting,  drawing, 
chromo,  statue,  statuary,  and  of  models  or  designs  in- 
tended to  be  perfected  as  works  of  the  fine  arts,  and  the 
executors,  administrators,  or  assigns  of  any  such  per- 
son shall,  upon  complying  with  the  provisions  of  this 
chapter,  have  the  sole  liberty  of  printing,  reprinting, 
publishing,  completing,  copying  executing,  finishing, 
and  vending  the  same ;  and,  in  the  case  of  a  dramatic 
composition,  of  publicly  performing  or  representing  it, 
or  causing  it  to  be  performed  or  represented  by  others. 
And  authors  or  their  assigns  shall  have  exclusive  right 
to  dramatize  or  translate  any  of  their  works,  for  which 
copyright  shall  have  been  obtained  imder  the  laws  of 
the  United  States.     [ ] 

In  the  construction  of  this  act  the  words  **  engraving  " 
"cut,"  and  "print,"  shall  be  applied  only  to  pictorial 
illustrations  or  works  connected  with  the  fine  arts,  and 
no  prints  or  labels  designed  to  be  used  for  any  other 
articles  of  manufacture  shall  be  entered  under  the  copy- 
right law,  but  may  be  registered  in  the  Patent  Office. 


Copyright  Law  of  the  United  States       5 

And  the  Commissioner  of  Patents  is  hereby  charged 
with  the  supervision  and  control  of  the  entry  or  registry 
of  such  prints  or  labels,  in  conformity  with  the  regula- 
tions provided  by  law  as  to  copyright  of  prints,  except 
that  there  shall  be  paid  for  recording  the  title  of  any 
print  or  label,  not  a  trade-mark,  six  dollars,  which  shall 
cover  the  expense  of  furnishing  a  copy  of  the  record, 
under  the  seal  of  the  Commissioner  of  Patents,  to  the 
party  entering  the  same.     [ ] 

§  4953.  Copyrights  shall  be  granted  for  the  term  of 
twenty-eight  years  from  the  time  of  recording  the  title 
thereof,  in  the  manner  hereinafter  directed. 

§  4954.     The  author,  inventor,  or  designer,  if  he  be 

still  living  [ ],  or  his  widow  or  children,  if  he  be 

dead,  shall  have  the  same  exclusive  right  continued  for 
the  further  term  of  fourteen  years,  upon  recording  the 
title  of  the  work  or  description  of  the  article  so  secured  a 
second  time,  and  complying  with  all  other  regulations 
in  regard  to  original  copyrights,  within  six  months  be- 
fore the  expiration  of  the  first  term.  And  such  persons 
shall,  within  two  months  from  the  date  of  said  renewal, 
cause  a  copy  of  the  record  thereof  to  be  published  in  one 
or  more  newspapers,  printed  in  the  United  States,  for 
the  space  of  four  weeks. 

§4955.  Copyrights  shall  be  assignable  in  law  by  any 
instnmient  of  writing,  and  such  assignment  shall  be 
recorded  in  the  office  of  the  Librarian  of  Congress  within 
sixty  days  after  its  execution;  in  defatilt  of  which  it 
shall  be  void  as  against  any  subsequent  purchaser  or 
mortgagee  for  a  valuable  consideration,  without  notice. 

§  4956.  No  person  shall  be  entitled  to  a  copyright 
unless  he  shall,  on  or  before  the  day  of  publication,  in 
this  or  any  foreign  country,  deliver  at  the  office  of  the 
Librarian  of  Congress,  or  deposit  in  the  mail,  within  the 


6      Copyright  Law  of  the  United  States 

United  States,  addressed  to  the  Librarian  of  Congress, 
at  Washington,  District  of  Columbia,  a  printed  copy  of 
the  title  of  the  book,  map,  chart,  dramatic  or  musical 
composition,  engraving,  cut,  print,  photograph,  or 
chromo,  or  a  description  of  the  painting,  drawing, 
statue,  statuary,  or  a  model  or  design,  for  a  work  of  the 
fine  arts,  for  which  he  desires  a  copyright;  nor  imless 
he  shall  also,  not  later  than  the  day  of  the  publication 
thereof,  in  this  or  any  foreign  coimtry,  deliver  at  the 
office  of  the  Librarian  of  Congress,  at  Washington,  Dis- 
trict of  Columbia,  or  deposit  in  the  mail,  within  the 
United  States,  addressed  to  the  Librarian  of  Congress, 
^t  Washington,  District  of  Columbia,  two  copies  of  such 
copyright  book,  map,  chart,  dramatic  or  musical  com- 
position, engraving,  chromo,  cut,  print,  or  photograph, 
or  in  case  of  a  painting,  drawing,  statue,  statuary, 
model,  or  design  for  a  work  of  the  fine  arts,  a  photo- 
graph of  the  same:  Provided,  That  in  the  case  of  a 
book,  photograph,  chromo,  or  lithograph,  the  two 
copies  of  the  same  required  to  be  delivered  or  deposited 
as  above,  shall  be  printed  from  type  set  within  the 
limits  of  the  United  States,  or  from  plates  made  there- 
from, or  from  negatives,  or  drawings  on  stone  made 
within  the  limits  of  the  United  States,  or  from  transfers 
made  therefrom.  During  the  existence  of  such  copy- 
right the  importation  into  the  United  States  of  any 
book,  chromo,  lithograph,  or  photograph,  so  copy- 
righted, or  any  edition  or  editions  thereof,  or  any  plates 
of  the  same  not  made  from  type  set,  negatives,  or  draw- 
ings on  stone  made  within  the  limits  of  the  United 
States,  shall  be  and  is  hereby  prohibited,  except  in  the 
cases  specified  in  paragraphs  512  to  516,  inclusive,  in 
section  two  of  the  act  entitled,  an  act  to  reduce  the 
revenue  and  equalize  the  duties  on  imports  and  for 


Copyright  Law  of  the  United  States      7 

other  purposes,  approved  October  i,  1890;  and  except 
in  the  case  of  persons  purchasing  for  use  and  not  for  sale, 
who  import,  subject  to  the  duty  thereon,  not  more  than 
two  copies  of  such  book  at  any  one  time ;  and,  except  in 
the  case  of  newspapers  and  magazines,  not  containing 
in  whole  or  in  part  matter  copyrighted  tmder  the  pro- 
visions of  this  act,  imauthorized  by  the  author,  which 
are  hereby  exempted  from  prohibition  of  importation : 

Provided,  nevertheless,  That  in  the  case  of  books  in 
foreign  languages,  of  which  only  translations  in  English 
are  copyrighted,  the  prohibition  of  importation  shall 
apply  only  to  the  translation  of  the  same,  and  the  im- 
portation of  the  books  in  the  original  language  shall  be 
permitted.     [ ] 

§  4957.  The  Librarian  of  Congress  shall  record  the 
name  of  such  copyright  book,  or  other  article,  forth- 
with in  a  book  to  be  kept  for  that  purpose,  in  the  words 
following :  "  Library  of  Congress,  to  wit :  Be  it  remem- 
bered that  on  the  day  of  A.  B.,  of 
hath  deposited  in  this  office  the  title  of  a  book  (map, 
chart,  or  otherwise,  as  the  case  may  be,  or  description 
of  the  article),  the  title  or  description  of  which  is  in  the 
following  words,  to  wit:  (here  insert  the  title  or  de- 
scription,) the  right  whereof  he  claims  as  author, 
(originator,  or  proprietor,  as  the  case  may  be,)  in  con- 
formity with  the  laws  of  the  United  States  respecting 
copyrights.  C.  D.,  Librarian  of  Congress."  And  he 
shall  give  a  copy  of  the  title  or  description,  imder  the 
seal  of  the  Librarian  of  Congress,  to  the  proprietor, 
whenever  he  shall  require  it. 

§  4958.  The  Librarian  of  Congress  shall  receive 
from  the  persons  to  whom  the  services  designated  are 
rendered,  the  following  fees :  i .  For  recording  the  title 
or  description  of  any  copyright  book  or  other  article. 


8      Copyright  Law  of  the  United  States 

fifty  cents.  2.  For  every  copy  tinder  seal  of  such  record 
actually  given  to  the  person  claiming  the  copyright, 
or  his  assigns,  fifty  cents.  [3.  For  recording  and  certi- 
fying any  instrument  of  writing  for  the  assignment  of  a 
copyright,  one  dollar.  4.  For  every  copy  of  an  assign- 
ment, one  dollar.]  All  fees  so  received  shall  be  paid 
into  the  treasury  of  the  United  States :  Provided,  That 
the  charge  for  recording  the  title  or  description  of  any 
article  entered  for  copyright,  the  production  of  a  per- 
son not  a  citizen  or  a  resident  of  the  United  States,  shall 
be  one  dollar,  to  be  paid  as  above  into  the  treasury  of 
the  United  States,  to  defray  the  expenses  of  lists  of 
copyrighted  articles  as  hereinafter  provided  for. 

And  it  is  hereby  made  the  duty  of  the  Librarian  of 
Congress  to  furnish  to  the  Secretary  of  the  Treasury 
copies  of  the  entries  of  titles  of  all  books  and  other  arti- 
cles wherein  the  copyright  has  been  completed  by  the 
deposit  of  two  copies  of  such  book  printed  from  type 
set  within  the  limits  of  the  United  States,  in  accordance 
with  the  provisions  of  this  act,  and  by  the  deposit  of 
two  copies  of  such  other  article  made  or  produced  in  the 
United  States;  and  the  Secretary  of  the  Treasury  is 
hereby  directed  to  prepare  and  print,  at  intervals  of 
not  more  than  a  week,  catalogues  of  such  title-entries 
for  distribution  to  the  collectors  of  customs  of  the 
United  States  and  to  the  postmasters  of  all  post  offices 
receiving  foreign  mails,  and  such  weekly  lists,  as  they 
are  issued,  shall  be  furnished  to  all  parties  desiring 
them,  at  a  sum  not  exceeding  five  dollars  per  annum ; 
and  the  Secretary  and  the  Postmaster  General  are 
hereby  empowered  and  required  to  make  and  enforce 
such  rules  and  regulations  as  shall  prevent  the  importa- 
tion into  the  United  States,  except  upon  the  conditions 
above  specified,  of  all  articles  prohibited  by  this  act. 


Copyright  Law  of  the  United  States       9 

§  4959.  The  proprietor  of  every  copyright  book  or 
other  article  shall  deliver  at  the  office  of  the  Librarian 
of  Congress,  or  deposit  in  the  mail,  addressed  to  the 
Librarian  of  Congress,  at  Washington,  District  of  Co- 
lumbia [ ],  a  copy  of  every  subsequent  edition 

wherein  any  substantial  changes  shall  be  made:  Pro- 
vided, however.  That  the  alterations,  revisions,  and 
additions  made  to  books  by  foreign  authors,  heretofore 
published,  of  which  new  editions  shall  appear  subse- 
quently to  the  taking  effect  of  this  act,  shall  be  held  and 
deemed  capable  of  being  cop3nrighted  as  above  provided 
for  in  this  act,  unless  they  form  a  part  of  the  series  in 
course  of  publication  at  the  time  this  act  shall  take 
effect. 

§  4960.  For  every  failure  on  the  part  of  the  pro- 
prietor of  any  copyright  to  deliver,  or  deposit  in  the 
mail,  either  of  the  published  copies,  or  description,  or 
photograph,  required  by  sections  4956  and  4959,  the 
proprietor  of  the  copyright  shall  be  liable  to  a  penalty 
of  twenty-five  dollars,  to  be  recovered  by  the  Librarian 
of  Congress,  in  the  name  of  the  United  States,  in  an 
action  in  the  nature  of  an  action  of  debt,  in  any  district 
court  of  the  United  States  within  the  jurisdiction  of 
which  the  delinquent  may  reside  or  be  fotmd. 

The  following  act  in  relation  to  the  deposit  of  copies 
was  approved  March  3,  1893:  "That  any  author,  in- 
ventor, designer,  or  proprietor  of  any  book,  or  other 
article  entitled  to  copyright,  who  has  heretofore  failed 
to  deliver  in  the  office  of  the  Librarian  of  Congress,  or  in 
the  mail  addressed  to  the  Librarian  of  Congress,  two 
complete  copies  of  such  book,  or  description  or  photo- 
graph of  such  article,  within  the  time  limited  by  title 
sixty,  chapter  three,  of  the  Revised  Statutes  relating  to 
cop3rrights,  and  the  acts  in  amendment  thereof,  and  has 


lo     Copyright  Law  of  the  United  States 

complied  with  all  other  provisions  thereof,  who  has,  be- 
fore the  first  day  of  March,  anno  Domini  eighteen  hun- 
dred and  ninety-three,  delivered  at  the  office  of  the 
Librarian  of  Congress,  or  deposited  in  the  mail  ad- 
dressed to  the  Librarian  of  Congress,  two  complete 
printed  copies  of  such  book,  or  description  or  photo- 
graph of  such  article,  shall  be  entitled  to  all  the  rights 
and  privileges  of  said  title  sixty,  chapter  three,  of  the 
Revised  Statutes  and  the  acts  in  amendment  thereof." 

§  4961.  The  postmaster  to  whom  such  copyright 
book,  title,  or  other  article  is  delivered,  shall,  if  re- 
quested, give  a  receipt  therefor ;  and  when  so  delivered 
he  shall  mail  it  to  its  destination. 

§  4962.  No  person  shall  maintain  an  action  for  the 
infringement  of  his  copyright  imless  he  shall  give  notice 
thereof  by  inserting  in  the  several  copies  of  every  edi- 
tion published,  on  the  title-page,  or  the  page  immedi- 
ately following,  if  it  be  a  book;  or  if  a  map,  chart, 
musical  composition,  print,  cut,  engraving,  photograph, 
painting,  drawing,  chromo,  statue,  statuary,  or  model 
or  design  intended  to  be  perfected  and  completed  as  a 
work  of  the  fine  arts,  by  inscribing  upon  some  visible 
portion  thereof,  or  of  the  substance  on  which  the  same 
shall  be  motmted,  the  following  words,  viz:  "Entered 

according  to  act  o  Congress,  in  the  year ,  by  A.  B., 

in  the  office  of  the  Librarian  of  Congress,  at  Washing- 
ton "  ;  or,  at  his  option,  the  word  ''  Copyright,"  together 
with  the  year  the  copyright  was  entered,  and  the  name 
of  the  party  by  whom  it  was  taken  out,  thus :  ''  Copy- 
right, 18—  by  A.  B."     [ ] 

That  manufacturers  of  designs  for  molded  decorative 
articles,  tiles,  plaques,  or  articles  of  pottery  or  metal 
subject  to  copyright  may  put  the  copyright  mark  pre- 
scribed by  section  forty-nine  htmdred  and  sixty-two  of 


Copyright  Law  of  the  United  States     1 1 

the  Revised  Statutes,  and  acts  additional  thereto,  upon 
the  back  or  bottom  of  such  articles,  or  in  such  other 
place  upon  them  as  it  has  heretofore  been  usual  for  manu- 
facturers of  such  articles  to  employ  for  the  placing  of 
manufacturers'-,  merchants'-,  and  trade-marks  thereon. 

§  4963.  Every  person  who  shall  insert  or  impress 
such  notice,  or  words  of  the  same  purport,  in  or  upon 
any  book,  map,  chart,  dramatic  or  musical  composition, 
print,  cut,  engraving  or  photograph,  or  other  article, 
whether  such  article  be  subject  to  copyright  or  other- 
wise, for  which  he  has  not  obtained  a  copyright,  or  shall 
knowingly  issue  or  sell  any  article  bearing  a  notice  of  a 
United  States  copyright  which  has  not  been  copy- 
righted in  this  coimtry;  or  shall  import  any  book, 
photograph,  chromo,  or  lithograph,  or  other  article 
bearing  such  notice  of  copyright  or  words  of  the  same 
purport,  which  is  not  copyrighted  in  this  country,  shall 
be  liable  to  a  penalty  of  one  htindred  dollars,  recover- 
able one-half  for  the  person  who  shall  sue  for  such 
penalty  and  one-half  to  the  use  of  the  United  States; 
and  the  importation  into  the  United  States  of  any  book, 
chromo,  lithograph,  or  photograph,  or  other  article 
bearing  such  notice  of  copyright,  when  there  is  no  ex- 
isting copyright  thereon  in  the  United  States,  is  pro- 
hibited; and  the  circuit  courts  of  the  United  States 
sitting  in  equity  are  hereby  authorized  to  enjoin  the 
issuing,  publishing,  or  selling  of  any  article  marked 
or  imported  in  violation  of  the  United  States  copy- 
right laws,  at  the  suit  of  any  person  complaining  of 
such  violation :  Provided,  That  this  Act  shall  not  apply 
to  any  importation  of  or  sale  of  such  goods  or  articles 
brought  into  the  United  States  prior  to  the  passage 
hereof. 

§  4964.     Every  person  who,  after  the  recording  of  the 


12     Copyright  Law  of  the  United  States 

title  of  any  book  and  the  depositing  of  two  copies  of 
such  book  as  provided  by  this  act,  shall,  contrary  to  the 
provisions  of  this  act,  within  the  term  limited,  and  with- 
out the  consent  of  the  proprietor  of  the  copyright  first 
obtained  in  writing,  signed  in  presence  of  two  or  more 
witnesses,  print,  publish,  dramatize,  translate,  or  im- 
port, or,  knowing  the  same  to  be  so  printed,  published, 
dramatized,  translated,  or  imported,  shall  sell  or  ex- 
pose for  sale  any  copy  of  such  book,  shall  forfeit  every 
copy  thereof  to  such  proprietor,  and  shall  also  forfeit 
and  pay  such  damages  as  may  be  recovered  in  a  civil 
action  by  such  proprietor  in  any  court  of  competent 
jurisdiction. 

§  4965 .  If  any  person,  after  the  recording  of  the  title 
of  any  map,  chart,  dramatic  or  musical  composition, 
print,  cut,  engraving,  or  photograph  or  chromo,  or  of 
the  description  of  any  painting,  drawing,  statue,  statu- 
ary, or  model  or  design  intended  to  be  perfected  and 
executed  as  a  work  of  the  fine  arts,  as  provided  by  this 
act,  shall,  within  the  term  limited,  contrary  to  the  pro- 
visions of  this  act,  and  without  the  consent  of  the  pro- 
prietor of  the  copyright  first  obtained  in  writing, 
signed  in  presence  of  two  or  more  witnesses,  engrave, 
etch,  work,  copy,  print,  publish,  dramatize,  translate, 
or  import,  either  in  whole  or  in  part,  or  by  varying  the 
main  design,  with  intent  to  evade  the  law,  or,  Imowing 
the  same  to  be  so  printed,  published,  dramatized,  trans- 
lated, or  imported,  shall  sell  or  expose  for  sale  any  copy 
of  such  map  or  other  article,  as  aforesaid,  he  shall  forfeit 
to  the  proprietor  all  the  plates  on  which  the  same  shall 
be  copied,  and  every  sheet  thereof,  either  copied  or 
printed,  and  shall  further  forfeit  one  dollar  for  every 
sheet  of  the  same  found  in  his  possession,  either  print- 
ing, printed,  copied,  published,  imported,  or  exposed 


Copyright  Law  of  the  United  States     13 

for  sale ;  and  in  case  of  a  painting,  statue,  or  statuary, 
he  shall  forfeit  ten  dollars  for  every  copy  of  the  same  in 
his  possession,  or  by  him  sold  or  exposed  for  sale ;  Pro- 
vided, however,  That  in  case  of  any  such  infringement 
of  the  copyright  of  a  photograph  made  from  any  object 
not  a  work  of  the  fine  arts,  the  sum  to  be  recovered  in  any 
action  brought  under  the  provisions  of  this  section  shall 
be  not  less  than  one  himdred  dollars,  nor  more  than 
five  thousand  dollars,  and :  Provided,  further.  That  in 
case  of  any  such  infringement  of  the  copyright  of  a 
painting,  drawing,  statue  engraving,  etching,  print,  or 
model  or  design  for  a  work  of  the  fine  arts,  or  of  a  photo- 
graph of  a  work  of  the  fine  arts,  the  sum  to  be  recovered 
in  any  action  brought  through  the  provisions  of  this 
section  shall  be  not  less  than  two  htmdred  and  fifty 
dollars,  and  not  more  than  ten  thousand  dollars.  One- 
half  of  all  the  foregoing  penalties  shall  go  to  the  pro- 
prietors of  the  copyright  and  the  other  half  to  the  use  of 
the  United  States. 

§  4966.  Any  person  publicly  performing  or  repre- 
senting any  dramatic  or  musical  composition  for  which 
a  copyright  has  been  obtained,  without  the  consent  of 
the  proprietor  of  said  dramatic  or  musical  composition, 
or  his  heirs  or  assigns,  shall  be  liable  for  damages  there- 
for, such  damages  in  all  cases  to  be  assessed  at  such  sum, 
not  less  than  one  hundred  dollars  for  the  first  and  fifty 
dollars  for  every  subsequent  performance,  as  to  the 
court  shall  appear  to  be  just.  If  the  unlawful  perform- 
ance and  representation  be  willful  and  for  profit,  such 
person  or  persons  shall  be  guilty  of  a  misdemeanor  and 
upon  conviction  be  imprisoned  for  a  period  not  exceed- 
ing one  year.  Any  injunction  that  may  be  granted 
upon  hearing  after  notice  to  the  defendant  by  any  cir- 
cuit court  in  the  United  States,  or  by  a  judge  thereof, 


14     Copyright  Law  of  the  United  States 

restraining  and  enjoining  the  performance  or  repre- 
sentation of  any  such  dramatic  or  musical  composition, 
may  be  served  on  the  parties  against  whom  such  in- 
junction may  be  granted  anywhere  in  the  United  States, 
and  shall  be  operative  and  may  be  enforced  by  pro- 
ceedings to  punish  for  contempt  or  otherwise  by  any 
other  circuit  court  or  judge  in  the  United  States ;  but 
the  defendants  in  said  action,  or  any  or  either  of  them, 
may  make  a  motion,  in  any  other  circuit  in  which  he  or 
they  may  be  engaged  in  performing  or  representing 
said  dramatic  or  musical  composition,  to  dissolve  or  set 
aside  the  said  injunction  upon  such  reasonable  notice  to 
the  plaintiff  as  the  circuit  court  or  the  judge  before 
whom  said  motion  shall  be  made  shall  deem  proper; 
service  of  said  motion  to  be  made  on  the  plaintiff  in 
person  or  on  his  attorneys  in  the  action.  The  circuit 
courts  or  judges  thereof  shall  have  jurisdiction  to  en- 
force said  injunction  and  to  hear  and  determine  a  mo- 
tion to  dissolve  the  same,  as  herein  provided,  as  fully  as 
if  the  action  were  pending  or  brought  in  the  circuit  in 
which  said  motion  is  made. 

The  clerk  of  the  court,  or  judge  granting  the  injunc- 
tion, shall,  when  required  so  to  do  by  the  court  hearing 
the  application  to  dissolve  or  enforce  said  injimction, 
transmit  without  delay  to  said  court  a  certified  copy  of 
all  the  papers  on  which  the  said  injunction  was  granted 
that  are  on  file  in  his  office. 

§  4967.  Every  person  who  shall  print  or  publish  any 
manuscript  whatever,  without  the  consent  of  the  author 

or  proprietor  first  obtained  [ ]  shall  be  liable  to 

the  author  or  proprietor  for  all  damages  occasioned  by 
such  injury. 

§  4968.  No  action  shall  be  maintained  in  any  case  of 
forfeiture  or  penalty  under  the  copyright  laws,  unless 


Copyright  Law  of  the  United  States     15 

the  same  is  commenced  within  two  years  after  the  cause 
of  action  has  arisen. 

§  4969.  In  all  actions  arising  tmder  the  laws  respect- 
ing copyrights  the  defendant  may  plead  the  general 
issue,  and  give  the  special  matter  in  evidence. 

§  4970.  The  circuit  courts,  and  district  courts  hav- 
ing the  jurisdiction  of  circuit  courts,  shall  have  power, 
upon  bill  in  equity,  filed  by  any  party  aggrieved,  to 
grant  injtmctions  to  prevent  the  violation  of  any  right 
secured  by  the  laws  respecting  copyrights,  according  to 
the  course  and  principles  of  courts  of  equity,  on  such 
terms  as  the  court  may  deem  reasonable. 

§4971.     [ •] 

[Revised  Statutes,  title  13,  The  Judiciary,  pro- 
vides  as   follows:    Chap.  7    (sec.    629).     The   circuit 

courts  shall  have  original  jurisdiction  as  follows :   

Ninth.  Of  all  suits  at  law  or  in  equity  arising  imder  the 
patent  or  copyright  laws  of  the  United  States.  (Rev. 
Stat.,  1878,  pp.  no.  III.)  Chap.  11  (sec.  699).  A  writ 
of  error  may  be  allowed  to  review  any  final  judgment 
at  law,  and  an  appeal  shall  be  allowed  from  any  final 
decree  in  equity  hereinafter  mentioned,  without  regard 
to  the  sum  or  value  in  dispute :  First.  Any  final  judg- 
ment at  law  or  final  decree  in  equity  of  any  circuit  court 
or  of  any  district  court  acting  as  a  circuit  court,  or  of 
the  supreme  court  of  the  District  of  Columbia,  or  of  any 
Territory,  in  any  case  touching  patent-rights  or  copy- 
rights. (Rev.  Stat.,  1878,  p.  130.)  Chap.  12  (sec.  711). 
The  jurisdiction  vested  in  the  courts  of  the  United 
Statei3  in  the  cases  and  proceedings  hereinafter  men- 
tioned, shall  be  exclusive  of  the  courts  of  the  several 

States :  

Fifth.  Of  all  cases  arising  tmder  the  patent-right  or 
copyright  laws  of  the  United  States .     (Rev .  Stat . ,  1878, 


1 6     Copyright  Law  of  the  United  States 

pp.  134,  135.)  Chap.  18  (sec.  972).  In  all  recoveries 
under  the  copyright  laws,  either  for  damages,  forfeiture, 
or  penalties,  full  costs  shall  be  allowed  thereon.  (Rev. 
Stat.,  1878,  p.  183.)] 

The  act  approved  March  3,  1891  (51st  Congress,  ist 
session,  chap.  565:  26  Statutes  at  Large,  pp.  1106- 
II 10),  in  addition  to  the  amendments,  noted  above,  of 
sections  4952,  4954,  4956,  4958,  4959,  4963,  4964,  4965, 
and  4967,  provides  further  as  follows: 

"  That  for  the  purpose  of  this  act  each  volume  of  a 
book  in  two  or  more  volumes,  when  such  volumes  are 
published  separately,  and  the  first  one  shall  not  have 
been  issued  before  this  act  shall  take  effect,  and  each 
number  of  a  periodical  shall  be  considered  an  indepen- 
dent publication,  subject  to  the  form  of  copyrighting 
as  above."     (Sec.  11.) 

*'  That  this  act  shall  go  into  effect  on  the  first  day  of 
July,  anno  Domini  eighteen  himdred  and  ninety-one." 
(Sec.  12.) 

"  That  this  act  shall  only  apply  to  a  citizen  or  subject 
of  a  foreign  state  or  nation  when  such  foreign  state  or 
nation  permits  to  citizens  of  the  United  States  of  Ameri- 
ca the  benefit  of  copyright  on  substantially  the  same 
basis  as  its  own  citizens ;  or  when  such  foreign  state  or 
nation  is  a  party  to  an  international  agreement  which 
provides  for  reciprocity  in  the  granting  of  copyright,  by 
the  terms  of  which  agreement  the  United  States  of 
America  may  at  its  pleasure  become  a  party  to  such 
agreement.  The  existence  of  either  of  the  conditions 
aforesaid  shall  be  determined  by  the  President  of  the 
United  States,  by  proclamation  made  from  time  to 
time  as  the  purposes  of  this  act  may  require."     (Sec. 

13.) 

[An  Act  providing  for  the  public  printing  and  bind- 


Copyright  Law  of  the  United  States     17 

ing  and  the  distribution  of  public  documents,  (January 
12,  1895,  53d  Congress,  3d  session,  chap.  23,  sec.  52: 
28  Statutes  at  Large,  p.  608,)  provides  as  follows:  The 
Public  Printer  shall  sell,  under  such  regvdations  as  the 
Joint  Committee  on  Printing  may  prescribe,  to  any  per- 
son or  persons  who  may  apply,  additional  or  duplicate 
stereotype  or  electrotype  plates  from  which  any  Gov- 
ernment publication  is  printed,  at  a  price  not  to  exceed 
the  cost  of  composition,  the  metal  and  making  to  the 
Government  and  ten  per  centum  added:  Provided, 
That  the  full  amotmt  of  the  price  shall  be  paid  when 
the  order  is  filed :  And  provided,  further.  That  no  pub- 
lication reprinted  from  such  stereotype  or  electrotype 
plates  and  no  other  Government  publication  shall  be 
copyrighted.] 


II. 

Decisions  of  American  Courts. 


19 


II. 

Decisions  of  American  Courts. 
Section  I. 

Articles  Entitled  to  Copyright. 

Compilation.    Trotting  Records. 

American  Trotting  Register  Association 
V.  Gocher. 

Circuit  Court,  Northern  District  of  Ohio,  January,  1895. 
70  Fed.  R.  237. 

Motion  for  temporary  injunction.  Complainant 
published  and  copyrighted  a  list  of  trotters  and  pacers 
with  records  better  than  2:30.  The  defendant  used 
this  list  to  assist  himself  in  compiling  a  similar  one. 
He  admitted  that  he  availed  himself  of  complainant's 
industry ;  but  urged  that,  as  the  information  contained 
in  such  copyrighted  list  was  obtainable  elsewhere  from 
independent  sources,  he  had  a  right  to  use  it. 

It  was  held  that  mere  compilation  of  facts  was  pro- 
tected by  the  copyright  law,  as  well  as  original  matter 
showing  invention,  there  being  ample  authority  for 
holding  that  any  compilation  or  any  table  of  statistics 
which  is  the  result  of  the  author's  industry,  and  which 

21 


22  Decisions  of  American  Courts 

is  made  at  his  expense,  cannot  be  bodily  used  by  an 
infringer. 

A  temporary  injunction  was  granted  restraining  the 
defendant  from  pubHshing  so  much  of  his  record  as  was 
shown  to  be  pirated,  with  privilege  to  the  defendant 
to  publish  books  already  printed  upon  giving  bond  to 
cover  any  damages  siiffered  by  the  complainant. 

Compilation.    Racing  Chart. 

Egbert  v.  Greenberg. 

Circuit  Court,  Northern  District  of  California,  February,  1900. 
100  Fed.  R.  447. 

Complainant  copyrighted  an  ''official  form  chart*' 
containing  the  names,  records,  ages,  weights,  etc.,  of 
certain  race-horses.  The  chart  formed  part  of  the 
Daily  Racing  News,  and  was  covered  by  a  copyright 
obtained  on  that  paper.  On  motion  for  an  injunction 
to  restrain  defendant  from  publishing  a  copy  of  the 
chart,  it  was  contended  that  the  chart  was  not  a  proper 
subject  for  copyright,  and  that,  as  it  was  designed  for 
gambling  purposes,  equity  would  not  protect  it  al- 
though it  was  copyrighted. 

Morrow,  Circuit  Judge,  held  that  the  chart  came 
within  the  rule  permitting  compilations  to  be  copy- 
righted ;  that  the  copyright  was  valid ;  and  that,  as  it 
appeared  that  the  paper  was  bought  and  read  by  others 
than  those  engaged  in  gambling  on  races,  the  fact  that 
the  chart  might  be  employed  by  some  in  placing  bets 
would  not  prevent  equity  protecting  a  valid  copyright. 

Injunction  granted. 


Articles  Entitled  to  Copyright  23 

Compilation.    Credit  Ratings. 

BURNELL  V.    ChOWN. 
Circuit  Cotirt,  Northern  District  of  Ohio,  October,  1895. 
69  Fed.  R.  993. 

The  complainant  devised  a  method  of  collecting  and 
imparting  credit  ratings  which  he  put  in  practice  in 
Toledo.  The  book  containing  the  ratings  was  copy- 
righted.* The  defendant,  a  former  employee  of  the 
complainant,  adopted  the  same  method  and  completed 
a  book  by  his  own  efforts  relating  to  the  credit  of  mer- 
chants in  another  cotmty.  In  an  action  to  restrain 
the  publication  of  this  book  the  defendant  demurred 
to  the  complaint. 

Ricks,  District  Judge,  after  deciding  that  the  bill 
did  not  sufficiently  allege  that  there  had  been  the  de- 
posit of  copies  required  by  law  to  procure  a  copyright, 
held  that  on  common-law  principles  there  had  been  no 
wrong  done.  He  said:  " In  this  case  the  plaintiff  has 
gone  to  original  sources  of  information,  and  by  great 
industry  and  by  some  originality  has  compiled  this  in- 
formation and  has  conceived  a  plan  by  which  it  could 
be  imparted  in  a  very  clear  and  speedy  way  for  the 
information  of  those  who  purchased  the  right  to  use  it. 
But  it  will  hardly  be  contended  that  because  John 
Smith  gathered  information  as  to  the  credit,  business 
methods,  standard  for  prompt  payment  of  debts,  etc., 
of  all  citizens  of  the  city  of  Toledo,  that  therefore  James 
Jones  could  not,  by  his  own  industry,  research,  and 
labor,  gather  similar  information  as  to  men  in  Cuyahoga 
County.     .     .     .     The  latter  cannot  be  said  to  have 

*  As  to  publication  of  books  of  credit  ratings,  see:  Jewelers' 
Agency  v.  Jewelers'  Pub.  Co.,  155  N.  Y.  241. 


24  Decisions  of  American  Courts 

copied  the  production  of  the  former.  .  .  .  The 
defendants  are  not  appropriating  to  any  extent,  or  in 
any  respect,  the  result  of  the  labor,  research,  and  in- 
dustry of  the  plaintiff,  by  which  the  information  for 
his  publications  or  manuscript  has  been  gathered. 
They  have  simply  availed  themselves  of  the  plan  by 
which  this  information  was  ascertained  and  imparted, 
and  have  shown  just  as  much  industry,  have  gone  to 
sources  of  original  information,  and  have  at  great  ex- 
pense compiled  their  information,  and  used  it.  Ad- 
mitting that  they  have  gathered  this  information  and 
seek  to  impart  it  upon  the  same  plan  which  the  plaintiff 
has  conceived  and  originated,  that  conception  is  not  a 
matter  which  can  be  protected  by  either  the  copy- 
right law  or  the  common  law." 
Bill  dismissed. 

Annotated  Statutes. 

Howell  v.  Miller. 

Circuit  Court  of  Appeals,  Sixth  Circuit,  November,  1898. 
91  Fed.  Rep.  129. 

Complainant  compiled  an  edition  of  the  laws  of 
Michigan  with  annotations,  index,  citations,  etc.  He 
copyrighted  this  book  and  sold  the  same  for  his  own 
profit.  Miller,  the  defendant,  by  authority  of  the 
State  legislature  subsequently  made  a  collection  of  the 
statutes  similar  in  general  character  to  the  complain- 
ant's. The  latter  thereupon  brought  suit  in  equity  for 
an  injtmction  restraining  the  former  from  publishing 
his  work.  Defendant  argued  that  he  was  not  liable 
because  he  was  acting  under  the  authority  of  the  State 
of  Michigan  and  as  its  agent,  and  a  suit  against  him  was 


Articles  Entitled  to  Copyright  25 

a  suit  against  the  State,  which  a  citizen  had  no  right  to 
bring  under  the  United  States  Constitution  (nth 
Amendment) . 

Harian,  Circuit  Judge,  said,  "  It  cannot  be  held  that 
the  official  character  of  the  present  defendants  con- 
stitutes of  itself  a  reason  why  they  may  not  be  enjoined 
from  infringing  the  rights,  if  any,  which  the  plaintiff 
has  tmder  the  copyright  laws  of  the  United  States.  A 
state  cannot  authorize  its  agents  to  violate  a  citizen's 
right  of  property,  and  then  invoke  the  Constitution  of 
the  United  States  to  protect  those  agents  against  suit 
instituted  by  the  owner  for  the  protection  of  his  rights 
against  injury  by  such  agents." 

As  to  complainant's  rights  imder  the  Copyright  Law, 
he  said:  *'It  was  suggested  in  argtmient  that  no  one 
can  obtain  the  exclusive  right  to  publish  the  laws  of  a 
state  in  a  book  prepared  by  him.  This  general  proposi- 
tion cannot  be  doubted.  And  it  may  also  be  said  that 
any  person  desiring  to  publish  the  statutes  of  a  state 
may  use  any  copy  of  such  statues  to  be  foimd  in  any 
printed  book,  whether  such  book  be  the  property  of 
the  state  or  the  property  of  an  individual.  If  Miller  had 
cut  from  Howell's  books,  delivered  to  him  by  the  state, 
the  general  laws  of  Michigan  as  therein  printed,  and  the 
pages  so  cut  out  had  been  used  when  his  compila- 
tion was  printed, — if  this  had  been  done,  and  nothing 
more — there  would  have  been  no  ground  of  com- 
plaint. But  it  is  said  he  did  more  than  this,  and  that 
he  appropriated  such  parts  of  Howell's  books  as  were 
the  result  of  the  latter' s  labor  and  industry.  .  .  . 
We  are  of  opinion  that  Howell  was  entitled  to  have 
copyrighted  his  volumes  of  Annotated  Statutes,  and 
that  such  copyright  covers  all  in  his  books  that  may 
fairly  be  deemed  the  result  of  his  labor.     Speaking 


26  Decisions  of  American  Courts 

generally,  this  would  include  marginal  references, 
notes,  memoranda,  table  of  contents,  indexes,  and 
digests  of  judicial  decisions,  prepared  by  him  from 
original  sources  of  information;  also  such  headnotes 
as  are  clearly  the  result  of  his  labors.*  We  do  not 
perceive  any  difficulty  in  holding  that  his  copyright 
would  embrace  all  such  matters,  for  they  constitute  no 
part  of  that  which  is  public  property,  and  are  plainly 
produced  by  the  compiler." 

On  reviewing  the  evidence  it  was  held  that  the  de- 
fendant had  not  made  use  of  such  parts  of  complainant's 
books  as  were  fairly  covered  by  his  copyright. 

Order  denying  injunction  affirmed. 

For  other  cases  holding  that  compilations  are  entitled 
to  copyright  see:  Trow  v.  Boyd,  gy  Fed.  R.  586;  Wil- 
liams V.  Smythe,  no  Fed.  R.  g6i;  West  Publishing 
Company  v.  Lawyers'  Co-operative  Publishing  Company, 
jg  Fed.  R.  y^6;  Ladd  v.  Oxnard,  'j^  Fed.  R.  yo^. 

Photographs. 

Falk  v.  Brett  Lithographing  Company. 

Circtiit  Court,  Southern  District  of  New  York,  December,  1891. 
48  Fed.  R.  678. 

The  complainant,  a  photographer,  took  a  picture  of  a 
woman  and  child  posed  by  him  so  as  to  produce  what  he 
considered  an  artistic  effect.  The  child  put  its  fingers 
in  its  mouth  when  the  picture  was  taken,  otherwise  the 

*  As  to  use  of  books  of  reference,  see — Sirams  v.  Stanton,  75  Fed. 
R.  6;  West  Pub.  Co.  v.  Lawyers'  Pub.  Co.,  79  Fed.  R.  756;  Mead 
V.  West  Pub.  Co.,  80  Fed.  R.  380;  Lillard  v.  Sun  Pub.  Co.,  87  Fed. 
R.  213;  Edw.  Thompson  Co.  v.  Amer.  Law  B'k  Co.,  122  Fed.  R. 
922.     As  to  use  of  law  reports,  see  Wheaton  v.  Peters,  8  Pet.  591. 


Articles  Entitled  to  Copyright  27 

group  was  posed  by  the  photographer.  The  defendant 
merely  reversed  the  photograph  and  published  it  after 
the  complainant  had  secured  a  copyright  upon  it.  In  a 
suit  for  the  infringement  of  the  copyright,  Wheeler, 
District  Judge,  held  "that  a  photograph  may  be  the 
subject  of  a  valid  copyright  for  the  photographer  as  the 
author  of  it  is  well  shown  and  seems  to  be  settled  in 
Lithographic  Company  v.  Sarony,  iii  U.  S.  53.  The 
chief  difference  between  that  case  and  this,  as  to 
this  point,  is  that  the  artist  did  not  do  so  much  in 
preparing  the  subject  here  as  was  done  there.  But 
enough  was  done  here  by  placing  the  persons  in  position 
and  using  the  position  assumed  by  the  child  at  the 
proper  time  to  produce  this  photograph,  and  the  plain- 
tiff thereby  produced  it.  Other  photographs  may  have 
been  or  may  be  taken  of  some  other  woman  and  child, 
or  of  this  woman  and  child  in  similar  positions,  or  the 
same  as  near  as  may  be,  but  none  of  them  will  be  ex- 
actly like  this.  He  is,  and  no  one  else  can  be,  the 
author  of  this.  The  amoimt  of  labor  or  skill  in  the 
production  does  not  seem  to  be  material." 
Decree  for  injunction. 

Photographs  of  Natural  Scenery. 

Cleland  v.  Thayer. 

Circuit  Court  of  Appeals,  Eighth  Circtdt,  February,  1903. 
lai  Fed.  R.  71. 

The  suit  was  brought  in  equity  to  restrain  the  in- 
fringement of  a  copyright  of  a  colored  photograph 
entitled  Palisades-Alpine  Pass  in  Colorado.  The 
defendant  demurred,  contending  that  the  photograph 
was  not  entitled  to  copyright,  being  of  natural  scenery. 
The  Circuit  Court  of  Appeals,  reversing  the  court  below, 


28  Decisions  of  American  Courts 

held  that  the  picture  was  entitled  to  copyright  on  the 
authority  of  Bleistein  v.  Donaldson,  i88  U.  S.  239. 
Demurrer  overruled. 

Alteration  of  a  Published  Photograph. 

Snow  v.  Laird. 

Circuit  Court  of  Appeals,  Seventh  Circuit,  January,  1900. 
98  Fed.  R.  813. 

Complainant  made  and  published  a  photograph  with- 
out copyrighting  it.  Thereafter  she  had  a  slight  change 
made  in  it  by  etching  on  the  negative  a  cane  in  the  hand 
of  one  of  the  figures  in  the  picture.  This  she  copy- 
righted. Defendant  bought  a  copy  of  the  original 
photograph  and  sent  it  to  his  engraver  to  have  a  half- 
tone cut  made.  The  engraver  made  the  cut  from  a 
copy  of  the  altered  photograph  and  sent  it  to  defend- 
ant, who  published  it  without  perceiving  the  change. 
Suit  was  brought  to  recover  the  penalty  and  a  verdict 
was  directed  for  the  defendant. 

On  appeal  Circuit  Judge  Woods  said :  '*  Having  given 
the  original  photograph  to  the  public,  it  was  beyond 
the  power  of  the  plaintiff  to  obtain  a  valid  copyright  by 
so  slight  an  alteration  as  that  which  was  made.  The 
change  was  colorable  merely,  was  not  made  in  good 
faith  for  the  purpose  of  producing  a  new  work  of  art, 
but  in  an  attempt  to  reclaim  what  had  been  voluntarily 
and  irrevocably  surrendered.  To  declare  that  by  such 
a  change  a  photograph,  engraving,  or  other  style  of 
picture  which  has  become  public  property  may  be 
made  a  proper  subject  of  copyright  would  be  to  en- 
courage deceit  and  extortion  in  a  manner  impressively 
illustrated  by  the  facts  of  this  record." 


Articles  Entitled  to  Copyright  29 

The  Court  also  held  that  there  was  a  variance  between 
the  allegations  and  the  proof ;  for,  whereas  the  com- 
plainant alleged  that  she  was  the  proprietor  of  a  copy- 
righted photograph,  the  proof  showed  that  the  thing 
copyrighted  was  rather  an  etching — for  the  only  part 
of  the  photograph  which  had  not  been  published  pre- 
viously was  the  alteration  made  by  etching  on  the 
negative. 

Judgment  below  affirmed. 

For  other  cases  holding  that  photographs  may  be  copy- 
righted, see  Falk  v.  Donaldson  Lith.  Co.,  57  Fed.  R.  J2; 
Snow  V.  Mast,  65  Fed.  R.  ggy,  Edison  v.  Lubin,  iig 
Fed.  R.  ggj;  Bolles  v.  Outing  Co.,  ly^  U,  S.  262; 
Falk  V.  Curtis  Pub.  Co.,  g8  Fed.  R.  g8g;  Falk  v.  Cast, 
Lith.  Co.,  48  Fed.  R.  262;  Falk  v.  Heffron,  56  Fed.  R. 
2gg;  Litho.  Co.  v.  Sarony,  1 1 1  U.S.  53;  Press  Pub.  Co. 
V.  Falk,  5g  Fed.  R.  324. 

Illustrations  in  Copyrighted  Book  Protected. 

Miles  v.  American  News  Company. 

Circuit  Cotirt,  Southern  District  of  New  York,  November,  1898. 
{Not  reported.) 

General  Nelson  A.  Miles  wrote  and  Frederick  Rem- 
ington illustrated  a  book  entitled  Personal  Recollections 
of  General  Nelson  A.  Miles;  or  from  New  England  to 
the  Golden  Gate.  This  was  copyrighted.  The  defend- 
ant thereafter  published  a  collection  of  prints  under  the 
title  of  Remington's  Frontier  Sketches.  These  were 
reproductions  of  the  illustrations  contained  in  the 
complainant's  book.  On  motion  for  a  preliminary 
injimction  Judge   Lacombe  held  that  a  prima   facie 


30  Decisions  of  American  Courts 

case  had  been  made  out,  and  granted  the  injunction 
pending  suit.  The  case,  however,  was  never  pressed 
and  no  final  decision  was  made. 

Altered  Copy  of  Uncopyrighted  Painting. 

Monarch  Book  Company  v.  Neil. 

Circuit  Court,  Northern  District  of  Illinois,  December,  1900. 
{Not  reported.) 

The  complainant  was  the  proprietor  of  a  copyright 
granted  to  Frank  W.  Gimsaulus,  D.D., in  a  book  entitled 
The  Man  of  Galilee,  which  contained  illustrations 
copied  from  famous  foreign  paintings.  The  pictures 
in  the  book  published  had  been  altered  in  certain  par- 
ticulars and  were  not  exact  reproductions  of  the  orig- 
inal paintings.  The  defendant,  in  his  book,  The  Story 
of  a  Beautiful  Life,  copied  the  pictures  in  the  complain- 
ant's book.  In  a  suit  for  an  injunction  the  defendant 
contended  that  the  copyright  could  not  protect  copies 
of  such  foreign  paintings. 

Judge  Grosscup,  held:  That,  as  in  the  case  of  two 
of  the  pictures  at  least,  considerable  artistic  work  had 
been  done  in  the  way  of  changing  them,  as,  for  example, 
the  omission  of  a  spinning  wheel  from  the  picture  The 
Childhood  Home  of  Jesus  at  Nazareth,  and  as  it  ap- 
peared that  the  defendant  had  copied  the  picture  in  the 
book  and  not  the  original  painting,  the  complainant 
was  entitled  to  a  preliminary  injimction.  The  case 
never  went  to  a  final  hearing. 

Preliminary  injunction  granted. 

See  as  to  illustrations  Bennett  v.  Boston  Trav.  Co.,  loi 
Fed.  R.  445;  J.  L.  Mott  Iron  Wks  v.  Clow,  72  Fed.  R, 
168;  Miles  V.  Amer.  News  Co.,  p.  2p  ante. 


Articles  Entitled  to  Copyright  31 

Shorthand  System. 

Griggs  v.  Perrin. 

Circuit  Court,  Northern  District  of  New  York,  February,  1892. 
49  Fed.  R.  15. 

The  complainant  bought  the  copyright  of  a  book  by- 
one  Cross  entitled  Eclectic  Shorthand.  The  defend- 
ant wrote  and  published  a  book  describing  a  system 
practically  identical.  There  was  a  motion  for  an  in- 
jimction  and  the  master  appointed  to  take  proof  foimd 
that  there  was  no  proof  of  any  infringement.  On 
motion  to  confirm  the  report  of  the  master  dismissing 
the  bill  it  was  held  by  Coxe,  District  Judge :  *'  The  only 
question  decided  by  the  master  and  discussed  at  the 
argument  is  whether  or  not  the  copyright  of  a  book  de- 
scribing a  new  art  or  system  of  stenography  protects 
the  system,  when  considered  simply  as  a  system,  apart 
from  the  language  by  which  the  system  is  explained, 
so  that  another  who  illustrates  the  same  system  in  a 
different  book,  employing  totally  different  language, 
can  be  treated  as  an  infringer.  It  is  thought,  upon 
the  authority  of  Baker  v.  Selden,  10 1  U.  S.  99,  that 
the  master  was  right  in  the  conclusion  reached  by  him. 
A  party  may  invent  a  new  machine  and  write  a  book 
describing  it  for  which  he  may  obtain  a  copyright. 
This  does  not  prevent  another  author  from  describing 
the  same  machine.  He  must  not  copy  the  copyrighted 
book,  but  he  may  write  one  of  his  own.  So  with  a 
process,  a  system,  or  an  art,  the  fact  that  one  person  has 
described  it  and  obtained  a  copyright  for  his  description 
does  not  prevent  others  from  describing  the  same  art  in 
their  own  language.  The  copyright  book  is  sacred, 
but  not  the  subject  of  which  it  treats.   If  the  defendants 


32  Decisions  of  American  Courts 

have  described  the  complainant's  system  they  have 
not  offended,  for  that  reason  only,  against  the  copy- 
right law.     If  they  have  copied  complainant's  book 
they  have  offended  against  that  law." 
Injunction  denied. 

Trading  Stamp  System. 

Mutual  Advertising  Company  v.  Refo. 

Circuit  Court,  District  of  South  Carolina,  May,  1896. 
76  Fed.  R.  961. 

The  complainant  instituted  a  system  of  coupons  or 
trading  stamps  among  the  merchants  of  Charleston 
whereby  with  each  cash  purchase  the  buyer  received  a 
certain  ntmiber  of  coupons  according  to  the  amoimt 
of  his  purchase.  These  coupons  could  be  used  to 
obtain  various  articles  from  a  premium  list.  A  pam- 
phlet describing  this  system  was  copyrighted.  The 
defendants  adopted  a  coupon  system  of  similar  nature 
except  that  the  coupons  could  be  applied  on  cash  pur- 
chases made  at  certain  stores  as  so  much  cash  and  were 
not  restricted  to  use  in  obtaining  articles  from  the  pre- 
mium list.  The  defendants  issued  a  pamphlet  similar 
to  the  complainant's,  except  that  the  method  described 
therein  was  materially  different. 

Simonton,  Circuit  Judge,  held  that  the  alleged 
infringing  pamphlet,  except  for  the  description  of  the 
coupon  system,  was  nothing  but  a  leaflet  of  adver- 
tisements. The  publication  of  an  advertisement  even 
though  in  the  same  general  manner  as  a  copyrighted 
pamphlet,  is  not  an  infringement.  As  to  the  coupon 
system,  it  was  not  the  same  as  that  of  the  complainant, 
and  not,  in  any  case,  the  subject  of  copyright. 

Bill  dismissed. 


Articles  Entitled  to  Copyright  33 

Letter  File  Index  System. 

Amberg  File  and  Index  Company  v.  Shea, 
Smith  &  Co. 

Circtiit  Court  of  Appeals,  Seventh  Circuit,  October,  1897. 
8a  Fed.  R.  3M* 

The  complainant  entered  for  copyright  a  system  of 
letter  files  and  indices.  On  a  bill  for  alleged  infringe- 
ment by  the  defendant  the  latter  demurred  on  the 
ground  that  the  articles  were  not  subjects  of  copy- 
right. The  Circuit  Court  dismissed  the  complaint  and 
the  Circuit  Court  of  Appeals,  affirming  that  decree, 
held  (opinion  by  Jenkins,  Circuit  Judge) ;  "In  this 
case  there  is  no  explanation  accompanying  the  indexes. 
The  arrangement  of  letters  is  the  thought  of  the  author. 
These  indexes,  or  so-called  books,  are  not  made  for  ex- 
planation but  for  use.  They  do  not  convey  informa- 
tion. They  are  of  no  possible  service  tmtil  subjected  to 
use  in  the  filing  of  letters.  The  copyright  law  embraces 
those  things  that  are  printed  and  published  for  in- 
formation, and  not  for  use  in  themselves.  The  device 
of  the  appellant  is  not  within  the  law  of  copyright." 

Decree  afflrmed. 

As  to  copyright  on  a  system  or  method  see:  Mutual 
Advt.  Co.  V.  Refo,  7^  Fed,  R.  g6i;  Burnell  v.  Chown, 
6g  Fed.  R.  ggj;  Colliery  Eng.  Co.  v.  United  Corres. 
Schools,  g4  Fed.  R.  152;  Barnes  v.  Miner j  122  Fed.  R. 
480.  See  also  Bristol  v.  Equit.  Life  Assur.  Soc.y  ij2 
N.  Y.  264,  where  it  was  held  that  one  who  discloses  a 
system  of  soliciting  life  insurance  to  a  company  without 
having  any  contract,  whereby  the  company  shall  not 
adopt  or  disclose  the  system,  has  no  protection  under  com- 


34  Decisions  of  American  Courts 

mon  law.  The  possessor  of  the  idea  or  process,  by  im- 
parting his  information  makes  it  public  property,  and 
any  one  may  use  it  provided  he  infringes  no  contract 
obligations  thereby. 

Dance ;  Not  a  Dramatic  Composition. 

Fuller  v.  Bemis. 

Circtut  Court,  Southern  District  of  New  York,  June,  1892. 
50  Fed.  R.  926. 

Marie  Louise  Fuller  filed  for  copyright  a  description 
of  her  skirt  dance  as  a  dramatic  composition.  The 
defendant  produced  the  dance  in  public  and  an  action 
was  brought  in  equity  to  restrain  an  infringement.  On 
a  motion  for  an  injunction  Lacombe,  Circuit  Judge, 
held:  "Whatever  may  be  the  language  of  the  opinion 
in  Daly  v.  Palmer,  6  Blatchf.  264,  the  decision  is  not 
authority  for  the  proposition  that  complainant's  per- 
formance is  a  dramatic  composition,  within  the  mean- 
ing of  the  copyright  act.  It  is  essential  to  such  a 
composition  that  it  should  tell  some  story.  The  plot 
may  be  simple.  It  may  be  but  the  narrative  or  repre- 
sentation of  a  single  transaction ;  but  it  must  repeat  or 
mimic  some  action,  speech,  emotion,  passion,  or  char- 
acter, real  or  imaginary.  And  when  it  does,  it  is  the 
ideas  thus  expressed  which  become  the  subject  of  copy- 
right. An  examination  of  the  description  of  com- 
plainant's dance,  as  filed  for  copyright,  shows  that  the 
end  sought  for  and  accomplished  was  solely  the  de- 
vising of  a  series  of  graceful  movements,  combined  with 
an  attractive  arrangement  of  drapery,  lights  and  shad- 
ows, telling  no  story,  portraying  no  character,  depict- 
ing no  emotion.  Such  an  idea  may  be  pleasing,  but 
it  can  hardly  be  called  dramatic." 

Injunction  denied. 


Articles  Entitled  to  Copyright  35 

Vaudeville  **  Sketch." 

Barnes  v.  Miner. 

CircTiit  Court,  Southern  District  of  New  York,  March,  1903. 
123  Fed.  R.  480. 

The  complainant  copyrighted  the  description  of  a 
sketch  entitled  X-Rays  of  Society  which  consists  of 
a  brief  dialogue  introducing  several  songs  between 
which  the  actress  retires  from  the  stage  and  changes 
costume.  During  the  time  she  is  off  the  stage  the  pro- 
cess of  changing  costume  is  shown  on  a  screen  by  mov- 
ing pictures  from  a  kinetoscope. 

The  defendant  introduced  a  similar  sketch  in  his 
theatre  wherein  Adolph  Zink  recited  a  monologue  in- 
troducing songs  which  he  sung  imitating  various  actors. 
Between  these  songs  changes  of  costume  were  shown  on 
a  screen  in  the  same  manner  as  in  complainant's  sketch, 
but  neither  the  introduction,  nor  the  songs,  nor  the 
pictures  were  at  all  like  those  used  by  the  complainant. 
In  a  suit  for  infringement  Ray,  District  Judge,  held 
that  the  complainant  had  no  valid  copyright  in  her 
"  sketch"  because  it  was  not  a  proper  subject  of  copy- 
right, as  being  a  mere  spectacular  exhibition.  The 
introductory  part  was  very  scant  and  did  not  tend  to 
''promote  science  or  the  useful  arts"  and  was  therefore 
not  a  dramatic  composition  within  the  meaning  of  the 
copyright  act.  But  even  assuming  that  the  copyright 
had  been  valid,  there  was  no  infringement.  Defendant 
did  not  copy  complainant's  songs,  pictures,  or  dialogue. 
The  only  thing  he  could  have  taken  was  the  idea  of 
representing  by  kinetoscope  events,  which  were  sup- 
posedly taking  place  in  the  dressing-room.  Com- 
plainant had,  and  could  have,  no  copyright  on  the  use 


3^  Decisions  of  American  Courts 

of  the  kinetoscope.     As  long  as  the  defendant  used 
tincopyrighted    pictures   he   infringed    no    copyright. 
And  it  is  well  settled  that  a  system  or  mode  of  action 
is  not  a  subject  of  copyright. 
Bill  dismissed. 

As  to  what  is  a  dramatic  composition,  see:  Daly  v. 
Webster  J  56  Fed.  R.  483;  Henderson  v.  Tompkins,  60 
Fed.  R.  y^S;  Harper  v.  Ganthony  {not  reported,  see 
p.  138  post);  Bloom  v.  Nixon,  12 j  Fed.  R.  p//. 

Blank  Tax  Forms. 

Carlisle  v.  Colusa  County. 

Circuit  Cotirt,  Northern  District  of  California,  April,  1893. 
57  Fed.  R.  979- 

Bill  for  infringement  of  copyright.  The  complainant 
had  entered  for  copyright  a  blank  form  of  statement 
required  by  the  California  Code  to  be  filed  with  Tax 
Assessors.  Defendant  published  a  blank  form  sub- 
stantially like  the  complainant's.  Demurrer  to  the 
complaint  on  the  grotind  that  the  form  was  not  a  proper 
subject  for  copyright. 

McKenna,  Circuit  Judge,  said  in  substance:  It  is 
not  contended  by  complainant  that  his  form  is  a  * '  book ' ' 
in  the  common  acceptation  of  the  term,  or  that  it  has 
literary  merit.  His  only  claim  is  that  he  has  put  the 
requirements  of  the  Code,  which  is  claimed  to  be  com- 
mon material,  in  a  convenient  form  '*  by  skill,  labor,  and 
knowledge,"  to  quote  his  language.  That  the  form  is 
convenient  may  be  admitted,  but  whether  more  con- 
venient than  any  other  form  is  not  stated,  nor  is  it 
apparent  how  much  skill  and  legal  knowledge  were 


Articles  Entitled  to  Copyright  37 

required.*  But  surely  these  are  not  so  rare  that  they 
deserve  to  be  encouraged  by  a  monopoly. 

But  the  materials  are  not  common.  The  law  re- 
quires the  Board  of  Supervisors  to  furnish  the  blank 
forms,  and  if  one  convenient  form  can  be  copyrighted 
others  can,  and  the  Board  placed  in  the  position  of 
being  imable  to  perform  lawfully  their  duties  required 
by  law.  I  do  not  think  authors  will  be  encouraged  by 
such  a  copyright. 

Demurrer  sustained. 

Blank  Book. 

United  States  ex.  rel.  Everson  v.  Young. 

Supreme  Court,  District  of  Columbia,  February,  1889. 
{Not  reported.) 

A  writ  of  mandamus  was  demanded  to  compel  the 
Librarian  of  Congress  to  register  a  copyright.  He  had 
refused  to  register  a  blank  book  as  not  being  entitled  to 
copyright.  The  applicant  contended  that  the  Libra- 
rian's duty  was  merely  ministerial,  that  he  had  no  dis- 
cretion and  that  it  was  not  for  him  to  judge  whether 
an  article  was  within  the  law. 

Judge  Cole  held  that  the  relator  must  show  not  only 
a  clear  legal  right  to  a  writ  of  mandamus,  but  also  that 
if  it  were  granted  it  would  avail;  and  although  the 
Librarian  had  no  discretion,  yet  if  he  refused,  the  writ 
would  not  issue  tmless  it  appeared  that  the  article  was 

*  It  would  seem  under  the  authority  of  Henderson  v.  Tompkins, 
60  Fed.  R.  758,  and  Bleistein  v.  Donaldson  Lithographing  Com- 
pany, 188  U.  S.  239,  that  the  degree  of  literary  merit  of  the  composi- 
tion would  not  affect  the  validity  of  this  copyright,  but  although 
the  subject  thereof  had  very  little  value,  it  would  still  be  entitled 
to  protection.  However,  the  fact  that  aside  from  the  validity  of 
the  copyright,  there  had  been  no  infringement  of  such  right,  was 
amply  sufficient  to  sustain  the  decision. 


38  Decisions  of  American  Courts 

entitled  to  copyright,  and  that  its  entry  would  be  of 
use  to  the  relator.  Mandamus  will  not  be  used  to  order 
a  vain  thing  to  be  done.  It  was  held  that  a  blank  form 
book,  containing  not  a  single  English  sentence,  was  not 
entitled  to  copyright  and  no  mandamus  would  be 
granted.* 

Mandamus  refused. 

Advertisement.    Bottle  Label. 

HiGGINS   V.    KeUFFEL. 

United  States  Supreme  Court,  May,  1891. 
140  U.  S.  428. 

The  complainant  was  the  inventor  and  maker  of  a 
certain  variety  of  ink  put  up  in  glass  bottles  which  bore 
a  label  containing  the  words  "  waterproof  drawing  ink." 
This  label  he  entered  for  copyright.  Suit  was  brought 
to  enjoin  the  defendants  from  using  such  label  on  their 
ink  bottles.  The  defendants  contended  that  the  label 
was  not  a  proper  subject  for  copyright,  and,  secondly, 
that  even  if  it  were  entitled  to  copyright  no  valid  copy- 
right had  been  obtained,  as  no  legal  notice  had  been 
printed  on  the  labels  of  the  complainant.  Mr.  Justice 
Field,  giving  the  opinion  of  the  Court  said  with  respect 
to  the  clause  of  the  Constitution  empowering  Congress 
to  pass  copyright  laws:  ''This  provision  evidently  has 
reference  to  only  such  writings  and  discoveries  as  are 
the  result  of  intellectual  labor.  ...  It  does  not 
have  any  reference  to  labels  which  simply  designate 
or  describe  the  articles  to  which  they  are  attached, 
and  which  have  no  value  separated  from  the  articles; 
and  no  possible  influence  upon  science  or  the  useful  arts. 
.  .  .  It  cannot,  therefore,  be  held  by  any  reasonable 
*  See  also  Amberg  Co.  v.  Shea,  82  Fed.  R.  314. 


Articles  Entitled  to  Copyright  39 

argument  that  the  protection  of  mere  labels  is  within 
the  piirpose  of  the  clause  in  question.  To  be  entitled  to 
a  copyright  the  article  must  have  by  itself  some  value 
as  a  composition,  at  least  to  the  extent  of  serving  some 
purpose  other  than  as  a  mere  advertisement  or  designa- 
tion of  the  subject  to  which  it  is  attached." 

The  Court  also  held  that  even  had  the  label  been  a 
subject  of  copyright  there  would  be  no  action  main- 
tainable because  of  complainant's  failure  to  print  on 
each  label  the  required  copyright  notice. 

Decree  denying  injunction  affirmed. 

Advertisement.    Circus  Posters. 

Bleistein  V,  Donaldson  Lithographing 
Company. 

United  States  Supreme  Court,  February,  1903. 
188  U.  S.  239. 

This  was  an  action  brought  to  recover  the  penalties 
prescribed  for  infringement  of  a  copyright.  The  in- 
fringement consisted  in  copying  three  lithographs  pre- 
pared by  plaintiff  for  advertisements  of  a  circus.  One 
of  the  designs  was  of  a  ballet,  one  of  a  ntmiber  of  per- 
formers on  bicycles,  and  one  of  groups  of  men  and 
women  whitened  to  represent  statues. 

Defendant  contended:  i.  That  the  copyright  was 
invalid  because  taken  out  in  the  name  of  the  Courier 
Lithographing  Company,  which  was  neither  a  person 
nor  a  corporation ;  2.  That  engraving  is  not  among  the 
useful  arts  when  not  used  for  a  mechanical  end ;  3.  That 
being  for  use  as  advertisements,  they  were  not  works 
connected  with  the  fine  arts.  A  divided  court  held  that 
the  name  under  which  the  copyright  was  taken  out  was 
the  trade  name  of  the  complainant  and  that  was  sufii- 


40  Decisions  of  American  Courts 

cient  * ;  that  in  order  to  be  entitled  to  protection  as 
promoting  the  useful  arts,  the  subject-matter  of  a 
copyright  need  not  be  something  that  satisfied  bodily- 
needs  ;  and  that  the  adaptation  of  the  posters  to  adver- 
tising did  not  destroy  their  copyright. 

Mr.  Justice  Holmes  said:  **  We  asstime  that  the  con- 
struction of  the  Revised  Statute  §  4952,  allowing  a 
copyright  to  the  *  author,  inventor,  designer,  or  pro- 
prietor ...  of  any  engraving,  cut,  print  .  .  . 
(or)  chromo'  is  affected  by  the  act  of  1874,  c.  301,  sec.  3. 
That  section  provides  that  '  in  the  construction  of  this 
act  the  words  "  engraving,"  "  cut "  and  "  print "  shall  be 
applied  only  to  pictorial  illustrations  or  works  con- 
nected with  the  fine  arts.*  We  see  no  reason  for  taking 
the  words  *  connected  with  the  fine  arts*  as  qualifying 
anything  except  the  word  'w^orks,*  but  it  would  not 
change  our  decision  if  we  should  assume  further  that 
they  also  qualified  'pictorial  illustrations'  as  the  de- 
fendant contends. 

"These  chromo  lithographs  are  *  pictorial  illustra- 
tions.' The  word  *  illustrations '  does  not  mean  that 
they  must  illustrate  the  text  of  a  book,  and  that  the 
etchings  of  Rembrandt  or  Steinla's  engraving  of  the 
Madonna  di  San  Sisto  could  not  be  protected  to-day 
if  any  man  were  able  to  produce  them.  Again,  the  act, 
however  construed,  does  not  mean  that  ordinary 
posters  are  not  good  enough  to  be  considered  within  its 
scope.  The  antithesis  to  '  illustrations  or  works  con- 
nected with  the  fine  arts '  is  not  works  of  little  merit  or 
humble  degree,  or  illustrations  addressed  to  the  less 
educated  classes  f ;  it  is  *  prints  or  labels  designed  to  be 

*  See  also  Scribner  v.  Allen,  49  Fed.  R.  854;  Werckmeister  v. 
Springer  Lith.  Co.,  63  Fed.  R.  808. 

t  See  as  to  the  degree  of  artistic  merit  required,  Falk  v.  Brett 


Articles  Entitled  to  Copyright  41 

used  for  any  other  articles  of  manufacture."  Certainly 
works  are  not  the  less  connected  with  the  fine  arts  be- 
cause their  pictorial  quality  attracts  the  crowd  and 
therefore  gives  them  a  real  use — if  use  means  to  increase 
trade  and  to  help  to  make  money.  A  picture  is  none 
the  less  a  picture  and  none  the  less  a  subject  of  copy- 
right that  it  is  used  for  an  advertisement.  And  if  pic- 
tures may  be  used  to  advertise  soap,  or  the  theatre,  or 
monthly  magazines,  as  they  are,  they  may  be  used  to 
advertise  a  circus." 
Decree  reversed/^ 

Advertisement.    Trade  Catalogue. 

J.  L.  MoTT  Iron  Works  v.  Clow. 

Circiiit  Court,  Northern  District  of  Illinois,  February,  1896. 
7a  Fed.  Rep.  168. 

The  complainants  demanded  an  injimction  for  an  in- 
fringement of  a  copyright.  They  were  makers  of  bath 
tubs  and  published  a  catalogue  containing  illustrations 
of  their  wares.  This  they  filed  for  copyright.  The 
defendant  copied  the  pictures  for  a  catalogue  of  his  own. 
He  demurs  to  the  bill  on  the  ground  that  the  matter 
set  forth  was  not  entitled  to  copyright.  It  was  held 
(opinion  by  Judge  Grosscup):  "The  cuts  or  prints 
shown  in  complainants*  sheets,  in  connection  with  their 

Lith  Co.,  48  Fed.  R.  678;  Cleland  v.  Thayer,  121  Fed.  R.  71;  Hen- 
derson V.  Tompkins,  60  Fed.  R.  758. 

*  This  decision  of  the  Supreme  Court  reversed  the  decree  of  the 
Circuit  Court  and  of  the  Circuit  Court  of  Appeals,  in  Bleistein  v. 
Donaldson  Lithographing  Company,  98  Fed.  R.  608,  and  the 
Courier  Publishing  Company  v.  Donaldson  Lithographing  Com- 
pany, 104  Fed.  R.  993.  The  decision  holding  that  an  illustration 
used  incidentally  for  advertising  may  be  copyrighted  does  not 
overrule  Higgins  v.  Keuffel,  140  U.  S.  428,  which  held  that  a  label 
intended  solely  for  advertising  and  consisting  merely  of  a  few 
printed  words  was  not  entitled  to  copyright. 


42  Decisions  of  American  Courts 

ornamental  settings,  may  have  such  artistic  merit  as 
would  support  a  copyright  if  offered  as  a  work  of  fine  art. 
But  the  bill  does  not  show  that  the  author  or  designer 
intended  or  contemplated  these  cuts  and  prints  as  works 
of  fine  art.  No  copyright  was  asked  upon  them  sepa- 
rately from  the  advertising  sheet  of  which  they  are  a 
part.*  They  are  not  offered  to  the  public  as  illustra- 
tions or  works  connected  with  the  fine  arts,  but  are 
adjuncts  simply  to  a  publication  connected  with  a 
useful  art." 

Demurrer  sustained. 

This  decision  was  affirmed  by  the  Circuit  Court  of 
Appeals  (82  Fed.  R.  316)  on  the  ground  that  mere  ad- 
vertisements are  not  entitled  to  protection.* 

Music.     Topical  Song. 

Henderson  v.  Tompkins. 

Circtiit  Coiirt,  District  of  Massachusetts,  March,  1894. 
60  Fed.  R.  758. 

The  complainant  was  the  proprietor  of  a  copyrighted 
drama  t  entitled  Alt  Baha,  which  contained  a  comic 
song.     In  this  song  the  line  "  I  wonder  if  dreams  come 

*  For  right  of  advertisements  to  protection,  see :  Bleistein  v. 
Donaldson,  i88  U.  S.  239;  Higgins  v.  Keuffel,  140  U.  S.  428; 
Mut.  Adv.  Co.  V.  Refo,  76  Fed.  R.  961;  D'Ole  v.  Kan.  City  Star, 
94  Fed.  R.  840.  Under  the  rule  laid  down  by  the  Supreme  Court  in 
Bleistein  v.  Donaldson,  188  U.  S.  239,  it  is  of  no  importance  that 
the  article  is  an  advertisement.  If  it  is  otherwise  entitled  to  copy- 
right, its  use  in  advertising  will  not  prevent  its  securing  protection. 
The  copyright  of  the  whole  catalogue  would  be  valid,  and  the  cuts, 
as  an  essential  part  of  the  book,  would  be  protected  tmder  this 
view  of  the  law.  But  the  book  was  only  a  catalogue.  If  it  had 
been  a  literary  composition,  its  being  used  for  advertising  pur- 
poses would  not  have  prevented  copyright. 

t  As  to  dramatic  copyright,  see:  Barnes  v.  Miner,  122  Fed.  R. 
480;  Daly  V.  Webster,  56  Fed.  R.  483;  Brady  v.  Daly,  175  U.  S. 
148;   Fuller  V.  Bemis,  50  Fed.  R.  926. 


Articles  Entitled  to  Copyright  43 

true"  appeared  two  or  three  times  in  each  verse,  and 
there  was  a  chorus.  The  defendant  produced  a  song 
which  contained  the  said  line  in  each  verse  and  which 
had  a  chorus  almost  identical  with  the  complainant's. 
He  contended  in  a  suit  for  infringement  of  the  com- 
plainant's copyright  that  the  song  was  not  entitled  to 
copyright.  On  demurrer,  Putnam,  Circuit  Judge,  held 
that  the  fact  that  the  song  had  no  great  literary  merit 
did  not  prevent  its  being  copyrighted,  as  in  the  case  of 
Daly  V.  Webster,  very  slight  dramatic  or  literary  merit 
was  held  sufficient,  and  the  appropriation  of  a  substan- 
tial part  of  the  song  constituted  an  infringement.  * 

An  injtmction  was  denied,  however,  because  it  did 
not  appear  whether  it  was  the  words  or  the  music  or 
both  that  plaintiff  alleged  to  be  pirated.  Leave  was 
given  to  amend  the  complaint. 

Validity  of  Copyright  on  Indecent  Songs. 

Broder  v.  Zeno  Mauvais  Music  Company. 

Circuit  Court,  Northern  District  of  California,  June,  1898. 
88  Fed.  R.  74. 

Complainant  brought  suit  for  infringement  of  a 
song  Dora  Dean,  composed  by  his  assignor;  the  de- 
fendant filed  a  cross-bill  claiming  that  the  song  under 
the  name  Ma  Angeline  had  been  composed  previously 
by  the  assignor  of  the  defendant ;  defendant  also  con- 
tended that  in  any  event  complainant's  copyright  was 
invalid  because  the  song  Dora  Dean  contained  obscene 
and  indecent  words. 

*  No  great  literary  merit  is  requisite  to  entitle  a  work  to  copy- 
right: Daly  V.  Webster,  56  Fed.  R.  483;  Bleistein  v.  Donaldson,  1S8 
U.  S.  239;  Falk  V.  Brett  Lith.  Co.,  48  Fed.  R.  678. 


44  Decisions  of  American  Courts 

Morrow,  Circuit  Judge,  held  on  the  evidence  that 
the  song  was  first  composed  by  complainant's  assignor 
and  pirated  by  the  person  who  sold  his  composition  to 
the  defendant.  But  as  the  song  contained  indecent 
words,  the  Court  held  that  it  was  not  entitled  to  pro- 
tection tmder  the  copyright  law.  The  Court  stated: 
"This  decision,  however,  will  not  prevent  the  com- 
plainants from  republishing  their  song,  and,  by  omitting 
the  objectionable  words,  thus  to  secure  a  valid  copy- 
right therefor."  * 

Both  bills  dismissed. 

Title  of  Novel. 

Harper  v.  Ranous. 

Circuit  Court,  Southern  District  of  New  York,  May,  1895. 
67  Fed.  R.  904. 

The  complainant  was  the  proprietor  of  the  copyright 
on  Du  Maurier's  novel  Trilby.  The  defendants  pro- 
duced a  play  entitled  Trilby  which  copied  the  plot, 
characters,  and  events  of  the  story.  On  a  motion  for  an 
injimction  the  defendants  contended  that  there  was  no 
infringement  by  taking  the  title  of  a  copyrighted 
book. 

Lacombe,  Circuit  Judge,  held:  "Complainant's 
title  to  the  copyright  of  the  novel  Trilby,  as  set  forth 

*  The  dictum  of  the  Court  that  the  complainant  might  obtain  a 
valid  copyright  by  republishing  the  song  in  question  and  omitting 
the  objectionable  words  seems  open  to  question.  If  the  copyright 
was  not  valid  at  the  time  of  the  first  entry  it  would  seem  that  the 
right  would  have  been  lost  by  publication,  and  that  a  subsequent 
cop5rright  omitting  the  objectionable  part  would  be  impossible  on 
accoimt  of  a  prior  publication.     See  Snow  v.  Laird,  98  Fed.  R.  813. 

See  Egbert  v.  Greenberg,  no  Fed.  R.  447,  as  to  the  effect  of  un- 
lawful use  on  the  validity  of  a  copyright. 


Articles  Entitled  to  Copyright  45 

in  the  bill,  is  not  seriously  disputed ;  and  the  affidavits 
show  quite  plainly  that  defendant's  drama  or  play 
called  Trilby  presents  characters,  plot,  incidents, 
dramatic  situations,  and  dialogue  appropriated  from 
the  novel  thus  copyrighted.  Complainant  may  take 
an  injtmction  pendente  lite  restraining  the  defendant, 
his  agents  and  servants,  from  producing  or  publicly 
performing  any  play  or  drama  presenting  the  scenes, 
incidents,  plot,  or  dialogue  of  said  novel  Trilby  or  any 
substantial  part  thereof,  or  any  simulated  or  colorable 
imitation  or  adaptation  thereof.  The  application, 
however,  for  an  injunction  against  the  mere  use  of  the 
name  Trilby  as  the  title  of  any  dramatic  composition 
which  does  not  present  such  scenes,  incidents,  plot,  or 
dialogue,  simulated  or  colorable  imitation  or  adapta- 
tion thereof,  is  denied.  It  is  the  name  in  connection 
with  the  novel,  not  the  name  alone,  which  the  copy- 
right law  protects."  * 

Injunction  granted  as  stated  in  opinion. 

Daily  Newspaper. 

Tribune  Company  v.  The  Associated  Press. 

Circuit  Court,  Northern  District  of  Illinois,  February,  1900. 

116  Fed.  R.  126. 

The  London  Times  entered  into  a  contract  with  the 
Chicago  Tribune  whereby  it  was  to  cable,  daily,  war 
reports  and  editorials  concerning  the  South  African 
War  to  be  published  in  the  Tribune  on  the  same  day 
they  appeared  in  the  Times.     The  Tribune  published 

*  The  rule  was  re-affirmed  under  similar  circumstances  by  Judge 
Lacombe  in  Corbett  v.  Purdy,  80  Fed.  Rep.  901. 


46  Decisions  of  American  Courts 

these  selections  and  deposited  the  papers  containing 
them  for  copyright.  The  Associated  Press  made 
similar  selections  from  the  Times  and  cabled  them  to 
its  members.  On  motion  for  a  temporary  injunction 
the  complainant  argued  that  the  publication  by  the 
defendant  of  these  articles  was  an  infringement. 

Seaman,  District  Judge,  held  that  the  deposit 
and  entry  of  a  newspaper  as  an  entirety  gave  no  valid 
copyright.  No  special  matter  was  indicated  as  a  sub- 
ject of  copyright,  but  the  newspaper  was  entered  as  an 
entirety.  Since  a  large  part  of  it  was  not  entitled  to 
copyright,  there  could  be  no  general  copyright  in  it. 
He  further  held  that  imder  the  international  copyright 
law,  whatever  rights  vested  in  theTimes,  or  through  it  in 
the  Tribune,  could  be  exercised  only  for  matter  dis- 
tinctly set  apart  for  the  purpose  and  so  distinguished 
in  the  publication,  and  that  the  publication  in  this 
country  must  be  substantially  identical  with  that  in 
the  foreign  coimtry  to  bring  it  within  the  intent  of  the 
statute.* 

Injunction  denied. 

"Ticker  Tapes/' 

National  Telegraphic  News  Company  v.  The 
Western  Union  Telegraph  Company. 

Circuit  Court  of  Appeals,  Seventh  Circuit,  October,  1902. 
119  Fed.  R.  294. 

The  complainant  established  in  Chicago  a  system  of 
** tickers"  in  hotels  and  brokers'  offices.     It  collected 

*  The  statement  by  the  Court  that  a  general  copyright  on  the 
newspaper  would  not  cover  a  special  article  in  it  conflicts  with  the 
dicta  in  Bennett  v.  Boston  Traveller  Company,  loi  Fed.  R.  445. 
The  better  opinion  would  appear  to  be  that  a  copyright  on  a  book 


Articles  Entitled  to  Copyright  47 

news  and  published  it  at  great  expense  in  this  manner. 
The  defendants  took  the  records  of  facts  as  they  ap- 
peared upon  the  tape  of  the  complainant's  ticker  and 
immediately  distributed  it  over  a  system  of  their  own, 
thereby  avoiding  the  expense  of  collecting  the  same. 
In  an  action  to  restrain  this  appropriation,  the  defen- 
dants contended  that  it  was  impossible  to  copyright 
such  material  because  it  was  published  before  it  could 
be  deposited  for  copyright.  The  Circuit  Court  of  Ap- 
peals (opinion  by  Judge  Grosscup),  held  that  this 
did  not  infringe  a  copyright  because  the  information 
so  collected  was  not  a  proper  subject  for  copyright,  and 
no  valid  copyright  could  be  obtained  upon  it.  It  was 
a  matter  of  telegraphic  service  rather  than  authorship, 
and  did  not  come  within  the  class  of  subjects  in  the 
nature  of  directories  and  other  compilations.  But  the 
court  in  its  equity  jurisdiction  held  that  it  was  author- 
ized to  enjoin  such  copying  from  the  complainant's 
tickers  as  unfair  appropriation  of  its  labors  and  as  an 
imfair  competition  in  the  same  business. 
Decree  for  an  injunction. 

or  paper  covers  everything  in  it  which  is  entitled  to  copyright  as  a 
substantial  and  material  part  of  the  publication.  The  Bennett 
case  and  the  case  of  Mifflin  v.  Dutton,  112  Fed.  R.  1004,  190  U.  S. 
265,  would  indicate  that  a  publisher  is  entitled  to  protection  for 
everything  in  his  publication  which  is  a  proper  subject  of  copy- 
right provided  he  has  obtained  a  copyright  on  the  magazine  or 
paper  as  a  whole,  and  had  authority  to  copyright  the  articles.  The 
same  principle  is  upheld  in  Howell  v.  Miller,  91  Fed.  R.  129,  in 
respect  to  an  edition  of  State  Statutes  with  annotations  by  the 
proprietor  of  the  copyright. 


48  Decisions  of  American  Courts 

Section  2. 

Formalities  in  Obtaining 
Copyright. 

Deposit  of  Title.    Variance.    Protection  for 

Drama. 

Daly  v.  Webster. 

Circuit  Court  of  Appeals,  Second  Circuit,  October,  1892. 
56  Fed.  R.  483. 

In  this  case  Augustin  Daly,  the  proprietor  of  a  copy- 
righted play,  brought  suit  for  an  infringement.  The 
Circuit  Court  (47  Fed.  R.  903)  dismissed  his  bill,  holding 
that  he  had  no  valid  copyright  for  failure  to  deposit  the 
title  which  the  play  bore  when  published.  The  title 
filed  was  *'  Under  the  Gaslight:  A  Romantic  Panorama 
of  the  Streets  and  Homes  of  New  York."  The  title 
which  the  play  bore  when  published  was  **  Under  the 
Gaslight,  a  Totally  Original  Picturesque  Drama  of  Life 
and  Love  in  These  Times."  On  appeal  the  Circuit  Court 
of  Appeals  held  that  while  there  was  a  difference  in  the 
wording  of  the  title-pages,  it  was  only  as  to  the  descrip- 
tion of  the  play  set  forth  therein.  The  title  itself  was 
held  to  be  merely  the  words  "  Under  the  Gaslight,'' 
which  were  published  as  deposited;  the  rest  was 
merely  descriptive  matter  and  not  to  be  included  in  the 
title.  The  Court  found,  therefore,  that  there  was  no 
variance.* 

*As  to  variance,  see:  Black  v.  Allen,  56  Fed.  R.  764;  Patterson 
V.  Ogilvie,  119  Fed.  R.  451. 


Formalities  in  Obtaining  Copyright     49 

The  infringement  in  this  case  consisted  in  the  ap- 
propriation of  a  particular  scene  wherein  a  person  is 
strapped  to  a  railway  track  before  an  approaching 
train  and  is  rescued  at  the  last  moment.  There  was 
little  dialogue  in  this  scene,  but  it  was  held  to  be  a 
dramatic  composition  on  the  ground  that  a  series  of 
events  so  arranged  and  presented  could  tell  a  story 
quite  as  intelligible  to  the  spectator  as  if  it  had  been 
presented  to  him  in  a  written  narrative.  While  mere 
mechanical  appliances  are  not  entitled  to  copyright,  a 
series  of  events  dramatically  represented  are  proper 
subjects  of  copyright  and  a  play  which  appropriates  a 
scene  which  is  a  substantial  part  of  such  a  composition 
is  an  infringement.  The  Court  stated  that  a  scene 
omitting  the  rescuer  would  not  be  an  infringement, 
since  such  situations  where  a  person  was  in  imminent 
danger  by  being  tied  to  a  railway  track  before  an  ap- 
proaching train  were  common  literary  property  long 
before  the  complainant's  play  was  copyrighted.  It  was 
the  introduction  of  the  rescuer  in  his  scene  which  was 
novel  and  entitled  it  to  protection  as  a  substantial  part 
of  his  drama.* 

Decree  of  Circuit  Court  reversed. 

The  United  States  Supreme  Court  refused  to  review 
this  case  on  appeal  as  the  appeal  was  taken  from  the 
decree  of  the  Circuit  Court  entered  on  the  order  of 
the  Circuit  Court  of  Appeals.  In  cases  of  this  nature 
the  Supreme  Court  will  review  only  decisions  of  the 
Circuit  Court  of  Appeals.  Webster  v.  Daly,  163  U.  S. 
155. 

♦For  cases  on  infringement  of  part  of  a  copyrighted  work,  see: 
Bennett  v.  The  Boston  Trav.  Co.,  loi  Fed.  R.  445;  Henderson  v. 
Tompkins,  60  Fed.  R.  758. 


so  Decisions  of  American  Courts 

Deposit  of  Title.    Sale  of  Plates. 

Patterson  v.  J.  S.  Ogilvie  Publishing  Company. 

Circtnt  Court,  Southern  District  of  New  York,  November,  1902. 
119  Fed.  R.  451. 

An  action  was  brought  to  restrain  infringement  of 
a  copyrighted  book.  The  defendant  contended  that 
there  was  no  vaHd  copyright  on  account  of  a  variance 
between  the  title  as  filed:  "  The  Captain  of  the  Rajah. 
By  Howard  Patterson.  Illustrated  by  Warren  Shep- 
pard.  A  Thrilling  and  Realistic  Sea  Story  from  a 
Noted  Sailor's  Pen,"  and  the  title  as  published:  **  The 
Captain  of  the  Rajah:  A  Story  of  the  Sea  by  Howard 
Patterson.     Illustrated  by  Warren  Sheppard." 

Judge  Lacombe  held  this  to  be  no  variance  in  any 
substantial  part  of  the  title.*  The  objection  was  made 
that  it  was  not  shown  that  the  book  was  printed  from 
type  set  in  the  United  States ;  but  it  was  held  imma- 
terial, as  the  copyright  was  obtained  in  1890  and  the 
manufacturers*  clause  was  not  passed  until  1891.  The 
defendant  also  contended  that  the  sale  on  execution  of 
the  plates  from  which  the  book  was  printed  estopped 
the  plaintiff  from  claiming  copyright.  The  plates  were 
sold  by  the  sheriff  on  an  execution  against  the  plaintiff. 
It  was  held  that  this  did  not  carry  the  copyright.  The 
purchaser  got  so  many  pieces  of  metal,  but  no  right  to 
reproduce  the  books  which  could  be  printed  from  the 
plates.  It  was  also  held  that  the  statute  of  limitations 
had  not  nm  against  this  right  of  action,  for  it  was  not 
for  a  penalty,  but  for  damages  under  §  4964,  and  was 
therefore  not  barred  in  two  years. 

Decree  for  injunction. 

*See  Daly  v.  Webster,  56  Fed.  R.  483;  Black  v.  Allen,  56  Fed. 
R.  764. 


Formalities  in  Obtaining  Copyright     51 

For  other  cases  referring  to  the  deposit  of  titles  and 
copies  see  Belford  v.  Scribner,  144  U.  S.  488;  Falk  v. 
Donaldson  Lithographing  Company,  57  Fed.  R.  j2; 
Koppel  V.  Downing,  11  A  pp.  Dist.  Col.  pj;  Falk  v.  Cast 
Lithographing  Company,  48  Fed.  R.  262. 

Variance  in  Title.     Entry  by  Publisher.* 

Black  v.  H.  G.  Allen  Company. 

Circtiit  Court,  Southern  District  of  New  York,  April,  1893. 
56  Fed.  R.  764. 

This  was  an  Encyclopaedia  Britannica  case.  Black 
published  the  encyclopaedia  in  England.  Voliime  xxiii 
contained  an  article  by  Francis  A.  Walker,  which  was 
copyrighted  in  his  name.  The  defendant  reprinted 
the  encyclopaedia,  in  which  most  of  the  articles  were  by 
foreigners  and  so  not  entitled  at  that  time  to  copyright 
in  the  United  States.  The  reprint  also  included  the 
article  which  had  been  written  by  President  Walker. 
In  a  suit  for  an  infringement  the  defendant  contended 
that  there  was  a  fatal  variance  between  the  title  as 
deposited  and  the  title  of  the  article  as  published. 
And,  further,  that  subsequent  to  the  time  of  the  first 
entry  a  different  title  had  been  entered.  The  title 
as  filed  read :  ''An  Outline  of  the  Political  and  Economic 
History  of  the  United  States.  With  Maps  and  Charts, 
Part  I.,  History  and  Statutes,  by  Alexander  Johnson; 
Part  II.,  Population  and  Industry,  by  Francis  A. 
Walker."  The  two  copies  deposited  bore  the  title 
''United  States,  Part  III.,  Politics,  Geography  and 
Statistics,  Cop3n*ighted  1888  by  Francis  A.  Walker." 

*For  cases  on  entry  by  publisher,  see:  Mifflin  v.  Button,  112 
Fed.  R.  1004;  Koppel :;.  Downing,  11  App.  Dist.  Col.  93. 


52  Decisions  of  American  Courts 

Judge  Townsend  held  in  the  Circuit  Court  that  this 
did  not  constitute  such  a  variance  as  to  be  fatal  where 
the  defendant  did  not  claim  that  he  himself  or  any  one 
else  had  been  deceived  by  the  variance  and  that  the 
title  entered  might  be  altered  at  any  time  prior  to 
publication  without  prejudice  to  the  author  and  that 
the  copyright  would  still  date  from  the  time  of  the 
first  entry.  The  defendant  further  contended  that 
President  Walker  had  assigned  his  entire  interest  in 
the  article,  by  a  parol  agreement,  to  the  Blacks  and  that 
they,  as  citizens  of  England,  were  not  at  that  time  able 
to  take  out  a  copyright  in  the  United  States,  and  conse- 
quently there  was  no  valid  copyright  in  the  article. 
It  was  held  on  the  evidence  that  the  agreement  between 
Walker  and  the  Blacks  did  not  operate  to  transfer  any- 
thing more  than  a  license  to  use  the  article  in  the 
encyclopaedia  because  both  parties  intended  hat  a 
copyright  should  be  taken  out  and  they  knew  that 
the  Blacks  would  not  be  able  to  take  out  a  copyright. 
Consequently,  it  must  be  presumed  that  the  copyright 
was  reserved  to  Walker.  The  defendants  also  con- 
tended that  as  the  Scribners  acted  as  agents  of  the 
Blacks  and  entered  Vol.  xxiii  of  the  encyclopaedia 
(which  contained  the  article)  before  Walker  obtained  his 
copyright,  therefore,  it  was  impossible  for  Walker  to 
obtain  a  valid  copyright,  since  there  cannot  be  two 
in  the  same  work.  It  was  held  that  if  such  were  the 
facts,  that  nevertheless.  Walker's  copyright  was  valid 
because  the  Scribners  acting  as  agents  for  the  Blacks, 
were  bound  by  the  agreement  between  the  Blacks  and 
Walker,  and  if  they  obtained  any  valid  copyright  at  all, 
it  was  held  in  trust  for  Walker.  The  Court  further 
held,  contrary  to  the  contention  of  the  defendant,  that 
the  evidence  was  sufficient  to  prove  the  agreement  be- 


Formalities  in  Obtaining  Copyright     53 

tween  the  Blacks  and  Walker  and  that  two  copies  had 
been  deposited  in  Washington  within  ten  days  of  publi- 
cation, as  required  by  law.* 
Decree  for  injunction. 

Who  May  Procure  a  Copyright. 

Werckmeister  v.  Springer  Lithographing  Co. 

Circtiit  Court,  Southern  District  of  New  York,  October,  1894. 
63  Fed.  R.  808. 

Complainant  sued  for  an  injunction  and  account- 
ing. Prior  to  1892  E.  Bisson  painted  a  picture  en- 
titled Floreal  which  was  exhibited  in  Paris  in  that  year. 
He  sold  the  painting  while  on  exhibition,  but  reserved 
the  right  of  reproduction.  In  July  he  transferred  the 
copyright  and  right  of  reproduction  to  complainant. 
In  Jtme,  1892,  he  sold  the  replica  to  another  per- 
son. The  defendant,  having  made  lithograph  copies 
of  the  painting,  was  sued,  and  in  defence  contended 
that:  I.  The  copyright  notice  was  insufficient, 
"Copyright,  1892,  by  Photographische  Gesellschaft," 
because  it  did  not  give  the  name  of  the  person  taking 
out  the  copyright.  2.  That  the  painter  could  not  sell 
the  picture  to  one  and  the  copyright  to  another;  3. 
That  the  sale  of  the  replica  was  a  publication  that  de- 
stroyed any  copyright ;  4.  That  the  printing  of  a  cut  in 
the  exhibition  catalogue  was  a  publication. 

Townsend,  District  Judge,  held  as  to  the  first  point 

*  This  was  under  the  old  law,  which  provided  that  the  two 
copies  might  be  deposited  at  any  time  within  ten  days  of  publica- 
tion. In  this  case  they  were  deposited  on  the  tenth  day  after 
publication.  The  present  law  requires  deposit  on  or  before  the 
day  of  publication. 


54  Decisions  of  American  Courts 

that  the  trade  name  under  which  a  person  does  business 
is  sufficient  in  the  notice  of  copyright,  as  the  object  of 
the  notice  is  to  notify  the  pubHc  of  the  claim  of  copy- 
right and  to  enable  it  to  ascertain  the  party  by  whom 
it  was  taken  out.  One  seeking  information  as  to  these 
points  would  more  readily  obtain  it  if  told  that  the 
owner  was  the  **  Photographische  Gesellschaft "  than  if 
told  that  he  was  Emil  Werckmeister.* 

As  to  the  second  contention  of  the  defendant  the 
Court  said:  **It  is  claimed  by  the  defendant  that  a 
copyright  can  only  be  obtained  by  the  proprietor  of 
the  painting,  and  that,  after  the  author  had  parted 
with  the  right  of  property  in  the  painting,  he  could  have 
no  right  of  copyright  remaining;  that  imtil  the  copy- 
right is  actually  taken  out,  the  right  of  property  in  the 
painting  and  the  right  of  copyright  are  inseparable; 
that  after  the  sale  of  the  painting,  the  purchaser  was 
the  only  person  who  had  the  right  to  copyright  it,  or  to 
transfer  any  right  of  reproduction  or  copyright. f  This 
raises  the  question  of  the  meaning  of  the  word  "pro- 
prietor." .  .  .  It  will  not  be  denied  that  either  the 
author  or  any  unconditional  purchaser  of  the  painting 
might  have  originally  copyrighted  the  painting,  and 
then  sold  it,  either  retaining  the  copyright  or  selling  it 
to  another  purchaser.  The  statute  manifestly  does 
not  intend  to  vest  the  right  to  a  copyright  in  two  per- 
sons. When  there  is  a  "proprietor"  of  a  painting, 
within  the  meaning  of  the  statute,  the  right  of  the 
author  must  cease.  Did  the  purchaser  in  this  case 
become  the  "proprietor"  within  the  meaning  of  the 
statute?    I  think  not.     I  think  by  proprietor,  in  this 

*  See  also  Scribner  v.  Allen,  49  Fed.  R.  854;  Bleistein  v.  Donald- 
son, 188  U.  S.  239. 

t  See  Dielman  v.  White,  102  Fed.  R.  892. 


Formalities  in  Obtaining  Copyright     55 

statute,  is  intended  the  person  who  not  only  obtains 
the  right  to  physical  possession  of  the  painting,  but  the 
common-law  rights  of  publication  or  preventing  publi- 
cation which  belong  to  the  author.  ...  If,  then, 
the  purchaser  of  this  painting,  without  the  right  of 
reproduction,  did  not  become  the  owner  of  the  right  to 
copyright,  the  right  was  destroyed  or  remained  in  the 
author.  According  to  the  literal  words  of  the  statute, 
he  still  had  this  right.  He  was  the  author  of  the  paint- 
ing, and  there  was  no  proprietor  or  assign.  He  retained 
the  common-law  right  to  prevent  publication,  or  he 
could  give  it  to  the  public.  He  and  he  only  could 
furnish  the  consideration — the  publication — in  return 
for  which  the  public  confers  the  right  of  copyright. 
Unless  he  could  have  a  copyright,  the  right  was  de- 
stroyed and  the  benefit  the  public  might  receive  from 
a  duplication  of  the  painting  was  lost.  Such  a  limita- 
tion of  the  right  of  copyright  would  tend  to  defeat 
the  liberal  purposes  of  the  statute.  I  can  see  no  in- 
convenience and  no  violence  of  principle  in  allowing 
the  author  to  sell  his  painting  and  retain  the  right  to 
copyright.*' 

On  the  third  contention  it  was  held  that  the  replica 
was  not  a  copy  of  the  painting,  but  was  made  before 
it  to  assist  in  producing  the  painting.  It  differed  in 
size  and  style  and  was  itself  an  original  painting.  A 
publication  of  it  would  not  be  a  publication  of  the 
painting. 

Fourthly,  the  court  held  that  a  printing  of  a  cut  of 
the  painting  in  a  gallery  catalogue  was  not  a  publica- 
tion. It  was  not  intended  as  a  copy,  or  as  a  work  of 
art.  The  purpose  of  the  catalogue  was  merely  to  ftimish 
information  and  identification  of  the  paintings. 

Decree  for  injunction. 


56  Decisions  of  American  Courts 

Copyright  In  Firm  Name. 

ScRiBNER  V.  Henry  G.  Allen  Company. 

Circuit  Court,  Southern  District  of  New  York,  March,  1892. 
49  Fed.  R.  8sK 

Charles  Scribner,  while  the  sole  member  of  the  firm  of 
Charles  Scribner's  Sons,  took  out  a  copyright  on 
Scribner's  Statistical  Atlas  of  the  United  States ^  in  the 
name  of  Charles  Scribner's  Sons.  Defendant  infringed 
this  copyright  and  in  a  suit  for  an  infringement  con- 
tended that  imder  the  statute  there  was  no  valid  copy- 
right because  the  entry  was  made  tmder  a  fictitious 
name  and  not  imder  the  name  of  the  proprietor  of  the 
copyright. 

Shipman,  District  Judge,  in  overruling  a  demurrer 
to  the  bill  said:  "The  main  groimd  of  the  demurrer  is 
that  no  valid  copyright  exists  because  Charles  Scribner 
was  engaged  in  business  imder  a  fictitious  name,  that 
no  lawful  justification  for  the  use  of  said  name  is  alleged, 
and  that  he  should  have  caused  the  copyright  to  be 
taken  in  his  individual  name.  It  appears  from  the  bill 
that  the  assignee  and  owner  was,  for  a  time,  doing 
business  under  the  name  of  Charles  Scribner's  Sons, 
and  during  this  period  he  bought  the  right  to  obtain 
a  copyright  upon  the  book  which  he  apparently  pro- 
posed to  publish,  and  did  thereafter  publish  it,  in  said 
business.  At  common  law  individuals  are  permitted 
to ''carry  on  business  imder  any  name  or  style  which 
they  may  choose  to  adopt,"  and  "if  persons  trade  or 
carry  on  business  under  a  name,  style,  or  firm,  whatever 
may  be  done  by  them  under  that  name  is  as  valid  as  if 
real  names  had  been  used."  In  some  of  the  states  of 
this  country,  the  use  of  a  conventional  or  fictitious  name 


Formalities  in  Obtaining  Copyright     57 

is  regtilatecf.  or  controlled  by  codes  or  statutes.  I  do 
not  know  whether  the  New  York  Statutes  in  regard  to 
the  filing  of  certificates  apply  to  the  circumstances  of 
Mr.  Scribner's  case,  but,  assuming  that  they  do,  it  was 
not  necessary  to  aver  in  the  bill  that  such  certificates 
had  been  filed.  An  omission  to  file  a  certificate  wotdd 
have  no  effect  upon  the  title  of  property  which  he  had 
bought  in  the  name  of  the  firm.  If  he  were  the  sole 
member,  he  became  possessed  of  the  title  to  the  copy- 
right." 

Demurrer  overruled. 

Deposit  of  Copies. 

Osgood  v.  The  A.  S.  Aloe  Instrument 
Company. 

Circuit  Court,  Eastern  District  of  Missouri,  November,  1897. 
83  Fed.  R.  470. 

The  complainant  alleged  that  she  was  the  author  of  a 
book  entitled  How  to  Apply  Matt,  Bronze,  La  Croix 
and  Dresden  Colors  to  China;  that  she  copyrighted 
the  same  and  that  the  defendant  had  infringed  her 
copyright.  The  defendant  contended  that  complainant 
never  acquired  a  valid  copyright  because:  i.  She  did 
not  make  the  deposit  of  two  copies  before  publication ; 
2.  She  did  not  inscribe  the  proper  notice  on  the  pub- 
lished book. 

Adams,  District  Judge,  held:  "Authors  take  their 
rights  imder  and  subject  to  the  [copyright]  law,  and, 
when  assailed,  the  burden  is  upon  them  to  show  literal 
compliance  with  each  and  every  statutory  requirement 
in  the  nature  of  conditions  precedent.     I  shall  first  con- 


58  Decisions  of  American  Courts 

sider  the  issue  presented  as  to  whether  the  complainant, 
prior  to  the  date  of  pubHcation  of  her  work,  deHvered 
to  the  Librarian  of  Congress  two  copies  of  her  book. 
With  a  disposition  much  in  favor  of  upholding  copy- 
rights, and  thus  securing  to  authors  what  seems  to  be 
a  natural  right  to  the  rewards  of  their  own  literary 
labors,  I  have  studiously  examined  all  the  evidence 
bearing  on  this  question,  and  am  constrained  to  find 
that  the  complainant's  book  was  offered  for  sale,  sold, 
and  given  away,  and  therefore,  within  the  meaning  of 
the  law  "published,"  prior  to  the  20th  day  of  Novem- 
ber, 1 89 1,  the  date  of  the  delivery  of  the  two  copies  to 
the  Librarian  of  Congress.* 

"  Again  I  am  constrained  to  find  from  the  proof  be- 
fore me  that  complainant  failed  to  insert  in  the  several 
copies  of  her  book,  on  the  title-page,  or  on  the  page  im- 
mediately following  the  same,  notice  of  her  copyright, 
as  required  by  the  provisions  of  the  Act  of  March  3, 
1 89 1.  She  caused  to  be  inserted  on  the  page  immedi- 
ately following  the  title-page  the  words :  *  Copyrighted, 
1 89 1.  All  rights  reserved.'  This  is  clearly  not 
sufficient.  She  should  have  added  by  whom  the  book 
was  copyrighted." 

Bill  dismissed. 

For  further  examples  of  defective  notice  see  Part  II., 
Sec.  5,  post. 

*  Examination  of  the  evidence  showed  that  she  and  her  pub- 
lisher thought  the  Revised  Statutes,  allowing  ten  days  after  pub- 
lication for  deposit  of  copies,  were  still  in  effect.  Since  1891,  the 
deposit  must  be  made  on  or  before  the  day  of  publication. 


Formalities  in  Obtaining  Copyright     59 
Deposit  of  Description  of  Painting. 

Bennett  v.  Carr. 

Circuit  Cotirt  of  Appeals,  Second  Circtiit,  July,  1899. 
96  Fed.  R.  313. 

Carr  painted  a  pictiire  of  a  coach  and  four,  and 
called  it  Four-in-hand.  He  deposited  the  title  and  a 
photograph  of  the  painting  with  the  Librarian  of  Con- 
gress to  obtain  a  copyright,  but  no  description  was 
filed.  Defendant  thereafter  printed  a  cut  of  the  picture 
in  the  New  York  Herald.  In  an  action  to  recover  the 
penalty  under  §  4965,  it  was  held  (Thomas,  District 
Judge)  that  there  could  not  be  a  recovery  because  the 
complainant  had  not  fully  complied  with  all  the  re- 
quirements to  obtain  a  copyright.  The  statute  clearly 
indicates  that  both  a  photograph  and  a  description  are 
required;  and  the  photograph  cannot  be  construed  to 
serve  as  a  description  also,  for  the  statute,  being  penal, 
must  be  strictly  construed.  Nor  does  the  title  con- 
stitute a  description. 

Judgment  for  complainant  reversed. 

Manufacturers'  Clause.    Sheet  Music. 

Littleton  v.  Oliver  Ditson  Company. 

Circuit  Court,  District  of  Massachusetts,  August,  1894. 
6a  Fed.  Rep.  597. 

In  a  suit  for  an  injtinction  the  complainant  alleged 
that  defendant  infringed  his  copyright  on  three  certain 
musical  compositions.  The  defendant  contended  that 
there  was  no  valid  copyright  because  the  two  copies  of 
the  sheets  of  music  deposited  were  not  made  from  plates 


6o  Decisions  of  American  Courts 

engraved  or  type  set  in  the  United  States,  as  required 
by  §  4956  of  the  Revised  Statutes.* 

Colt,  Circuit  Judge,  held  that  under  the  proviso 
in  the  act  of  1891  that  in  case  of  a  ''book,  photograph, 
chromo  or  lithograph"  the  two  copies  deposited  with 
the  Librarian  of  Congress  shall  be  manufactured  in  this 
country,  a  musical  composition  is  not  a  "book."  "  In 
the  section  which  entmierates  the  things  which  may 
be  copyrighted,  'musical  composition'  is  mentioned 
as  something  different  from  '  book, '  and  we  find  this 
same  distinction  twice  observed  in  the  preceding  part 
of  the  section  which  contains  the  proviso.  It  is  as 
reasonable  to  suppose  that  'book'  and  'musical  com- 
position' were  as  much  intended  to  refer  to  different 
subjects  as  'map,  chart,  engraving'  and  other  enume- 
rated articles.  If  Congress,  in  the  proviso,  had  intended 
to  include  a  musical  composition  among  those  copy- 
righted things  which  must  be  manufactured  in  this 
cotmtry,  it  should  have  incorporated  it  in  the  list  of 
things  subject  to  this  restriction.  The  omission  in  the 
proviso  of  'musical  composition'  as  well  as  of  'map, 
chart,  and  engraving,'  and  other  things  before  enume- 
rated, is  very  significant  as  indicating  that  Congress 
never  intended  to  extend  this  provision  to  any  of  these 
articles.  And  so,  with  respect  to  'lithograph,'  if  Con- 
gress had  intended  to  cover  by  that  work  a  musical 
composition  made  by  the  lithographic  process  it  should 
have  expressed  its  meaning  in  clear  and  imambiguous 
terms,  in  view  of  the  language  used  in  other  portions 
of  the  statute." 

Injunction  granted. 

This  decision  was  affirmed  on  appeal  by  the  Circuit 

*  See  Patterson  v.  Ogilvie,  119  Fed.  R.  451,  Hills  v.  Austrich,  120 
Fed.  R.  862,  with  regard  to  manufacturers'  clause. 


Notice  of  Copyright  6i 

Court  of  Appeals  (67  Fed.  R.  905),  on  the  grounds 
stated  by  Judge  Colt. 

Manufacturers'  Clause.    Lithographs. 

Hills  &  Co.  v.  Austrich. 

Circuit  Court,  Southern  District  of  New  York,  March,  1903. 
120  Fed.  R.  862. 

On  a  motion  for  a  preliminary  injtmction  to  restrain 
the  infringement  of  a  copyrighted  picture,  the  defen- 
dant contended  that  tmder  the  manufacturers'  clause 
it  was  not  entitled  to  copyright  as  being  a  lithograph 
not  made  from  a  drawing  on  stone  made  in  this 
country  * ;  and  secondly,  that  the  notice  of  copyright 
inscribed  on  it  was  insufficient. 

Lacombe,  Circuit  Judge,  held  that  the  pictures  were 
evidently  prints  of  some  kind,  for  they  were  not  painted 
or  drawn  or  photographed.  Therefore  they  were 
clearly  "prints"  and  so  entitled  to  copyright  tmder 
§  4956 ;  and,  as  it  was  proved  by  the  production  of  the 
plates  from  which  they  were  made  that  they  had  not 
been  printed  from  drawings  on  stone,  therefore  they 
were  not  affected  by  the  law  requiring  lithographs  to 
be  made  from  stones  engraved  in  this  country.  The 
copyright  notice  in  these  words:  "Copyrighted,  1902, 
published  by  Hills  &  Co.,  Ltd.,  London,  England," 
was  held  sufficient. 

Injunction  granted, 

*  See  Littleton  v.  Ditson,  62  Fed.  R.  597,  and  Patterson  v, 
Ogilvie,  119  Fed.  R.  451. 


62  Decisions  of  American  Courts 

Section  3. 

Notice  of  Copyright. 

Form  of  Notice.     Date. 

Snow  v.  Mast. 

Circuit  Court,  Southern  District  of  Ohio,  January,  1895. 
65  Fed.  R.  995 

The  complainant  sued  for  penalties  under  §  4965  of 
the  Revised  Statutes.  The  defendant  demurred  to  the 
complaint  on  the  ground  that  the  notice  printed  on  the 
copyrighted  photographs  was  not  in  the  proper  form. 
The  notice  was  in  the  usual  form  except  that  it  abbrevi- 
ated the  date  thus — '94,  for  1 894.  Sage,  District  Judge, 
held ;  "  The  demurrer  will  be  overruled.  The  object  of 
the  statute  is  to  give  notice  of  the  copyright  to  the  pub- 
lic, and  it  would  be  too  narrow  a  construction  to  hold 
that  the  abbreviation  ^'94'  is  insufficient.  A  sub- 
stantial compliance  is  all  that  is  necessary." 

Demurrer  overruled. 

Form  of  Notice.*    Extent  of  Penalties. 

BoLLES  V.  Outing  Company. 

Supreme  Court,  December,  1899. 

175  U.  S.  262. 

Circuit  Court  of  Appeals,  Second  Circuit,  January,  1897. 

77  Fed.  Rep.  966. 

The  complainant  made  and  copyrighted  a  photo- 

*  As  to  the  efifect  of  using  a  trade  name,  or  omitting  a  first  name 
or  the  name  of  the  proprietor  entirely  from  the  notice,  see :  Werck- 
meister  v.  Springer,  63  Fed.  R.  808  ;  Osgood  v.  Aloe  Company,  83 
Fed.  R.  470;  Scribner  v.  Allen,  49  Fed.  R.  854;  Hills  v.  Austrich, 
120  Fed.  R.  862. 


Notice  of  Copyright  63 

graph  of  the  yacht  Vigilant  under  full  sail.  The  Outing 
Company  published  a  copy  of  this  picture  in  its  maga- 
zine without  permission  of  the  complainant.  The 
latter  sued  for  statutory  penalties.  On  the  first  trial 
the  bill  was  dismissed  because  the  Coiirt  thought  that 
the  notice  of  copyright  printed  on  the  photograph  was, 
as  the  defendant  contended,  insiifficient;  the  notice 
read:  "Copyright  93  by  Bolles  of  Brooklyn."  The 
trial  court  also  held  that  the  complainant  could  not  give 
evidence  as  to  the  ntmiber  of  copies  of  the  magazine 
containing  the  picture  that  could  be  traced  to  defen- 
dant. On  these  two  groimds  complainant  appealed  to 
the  Circuit  Court  of  Appeals,  which  held  that  the  notice 
of  copyright  was  stifficient  although  no  first  name  was 
given,  when  it  did  not  appear  that  there  was  any  other 
photographer  called  Bolles  or  that  the  public  was  likely 
to  be  misled.  On  the  second  point  the  trial  court  was 
affirmed.  On  the  appeal  to  the  Supreme  Court  it  was 
held.  Justice  Brown  reading  the  opinion,  that  §  4965  of 
the  Revised  Statutes  providing  for  a  forfeiture  of  $1 
for  every  infringing  copy  found  in  the  defendant's 
possession,  being  penal,  must  be  strictly  construed. 
The  language  of  the  section  is  clear.  It  forfeits  to  the 
proprietor  of  the  copyright  $1  for  every  sheet  foimd 
in  the  possession  of  the  infringer.  ''While  the  for- 
feiture is  not  limited  as  to  the  number  of  the  copies, 
it  is  limited  to  such  as  are  found  in,  and  not  simply 
traced  to,  the  possession  of  the  defendant.  Congress 
may  have  been  perfectly  willing  to  impose  a  forfeiture 
of  one  dollar  for  every  such  copy,  and  been  reluctant  to 
impose  it  upon  the  thousands  of  such  copies  that  may 
have  previously  been  put  in  circulation.  The  con- 
struction contended  for  would  permit  an  author  to  lie 
by  during  the  two  years  allowed  him  for  bringing  suit, 


64  Decisions  of  American  Courts 

permit  another  to  publish  the  work  during  that  time, 
and  then  recover  for  every  copy  so  pubhshed. ' ' 

The  Court  refused  to  consider  the  defendant's  con- 
tention that  the  Court  below  was  ia  error  in  holding 
the  notice  of  copyright  sufficient,  because  the  defen- 
dant had  taken  no  appeal  on  that  point.  The  decree 
of  the  Circuit  Court  reversing  the  judgment  of  the 
trial  court  was  affirmed. 

Form  of  Notice ;  Date  Omitted. 

HoERTEL  V.  Raphael  Tuck  Co. 

Circtiit  Court,  Southern  District  of  New  York,  Jtine,  1899. 

94  Fed.  R.  844. 

Defendant,  in  an  action  for  penalties  for  printing  a 
false  notice  of  copyright  on  fancy  cards,  demurred  to 
the  bill.  Judge  Lacombe  sustained  the  demurrer, 
holding  that  there  was  no  false  notice,  because  there 
was  no  notice  at  all,  siace  the  date  was  omitted.  The 
penalty  is  only  provided  for  a  false  notice  of  United 
States  copyright,  which  means  the  same  kind  of  a  notice 
as  that  required  to  perfect  a  copyright.  This  was  not 
such  a  notice. 

Form  of  Notice.    Date. 

Falk  v.  Schumacher. 

Circuit  Cotirt,  Southern  District  of  New  York,  November,  1891. 

48  Fed.  R.  222. 

The  complainant  brought  a  suit  for  infringement  of 
his  copyright  on  a  photograph.  On  a  demurrer  to  the 
bill  the  defendant  argued  that  the  copyright  was  invalid 
on  accoimt  of  failure  to  print  the  reauired  notice  in  the 


Notice  of  Copyright  65 

proper  form.*  Coxe,  District  Judge,  held:  "The  com- 
plainant, as  the  proprietor  of  a  photograph  of  Lillian 
Russell,  prays  for  an  injunction  restraining  the  defen- 
dants from  infringing  his  copyright.  .  .  .  The  bill 
alleges  that  the  notice  inscribed  on  each  copy  of  the 
photograph  was  *  1889.  Copyrighted  by  B.  J.  Falk  of 
New  York.*  The  notice  required  by  the  statute,  if 
followed  literally,  was  *  Copyright,  1889,  by  B.  J.  Falk.' 
Why,  with  this  simple  provision  of  the  law  before  him, 
the  complainant  saw  fit  to  inscribe  his  photograph  with 
a  notice  which  not  only  is  a  departure  from  the  strict 
letter  of  the  statute,  but  is  less  symmetrical  and  concise, 
is  indeed  amazing.  However,  imder  the  decision  in 
Callaghan  v.  Myers,  128  U.  S.  617,  the  notice  is  suf- 
ficient. The  statute  was  substantially  complied  with.** 
Demurrer  overruled. 

Form  of  Notice.     Surplusage. 

Hefel  v.  Whitely  Land  Company. 

Circuit  Court,  District  of  Indiana,  February,  1893. 
54  Fed.  R.  179. 

Complainant  brought  an  action  for  a  penalty  for  the 
infringement  of  a  copyrighted  map.  The  defendant 
contended  that  the  copyright  was  invalid  for  lack  of 
sufficient  notice.  The  notice  read :  ' '  Copyright  entered 
according  to  Act  of  Congress  1889,  by  T.  C.  Hefel,  civil 
engineer."  This,  the  defendant  urged,  failed  to  comply 
with  §  4962  of  the  Revised  Statutes  of  1878  because  it 
omitted  the  words  "in  the  office  of  Librarian  of  Con- 
gress, at  Washington."     Judge  Baker  held  that  §  4962 

*  See  also  Hoertel  v.  Tuck,  94  Fed.  R.  844;  Snow  v.  Mast,  6$ 
Fed.  R.  995;  BoUes  v.  Outing  Co.,  77  Fed.  R.  966. 


66  Decisions  of  American  Courts 

did  not  govern  the  case,  but  that  the  Act  of  June  i8th, 
1 8  74, was  controlling  though  passed  prior  to  the  Revised 
Statutes.  Section  5601  of  the  Revised  Statutes  recites 
that  all  acts  passed  after  December  i,  1873,  control 
the  revision  of  1878;  therefore  the  Act  of  1874,  not  the 
original  §  4962  of  the  Revised  Statutes  of  1878,  is  the 
law.  This  statute  permits  the  use  of  this  formula: 
''  Copyrighted,  18—,  by  A.  B." 

Judge  Baker  said:  "The  notice  alleged  to  have  been 
inscribed  on  each  copy  of  the  map  is  in  the  following 
words:  'Copyright  entered  according  to  the  Act  of 
Congress,  1889,  by  T.  C.  Hefel,  civil  engineer.'  The 
notice  embodies  the  exact  words  required  by  the  last 
formula  prescribed  in  the  statute,  with  the  additional 
words:  'entered  according  to  the  Act  of  Congress,' 
and  the  words  'civil  engineer'  following  the  author's 
name.  These  additional  words  simply  amplify  the 
formula  prescribed  by  the  statute,  without  in  any 
manner  affecting  its  meaning.  They  are  to  be  regarded 
as  surplusage.  The  maxim,  *  Utile  per  inutile  non 
vitiatur''  is  decisive.'  * 

Demurrer  overruled. 

Sufficiency  of  Notice. 

Edison  v.  Lubin. 

Circuit  Coiirt  of  Appeals,  Third  Circuit,  April,  1903. 
12a  Fed.  R.  240. 

The  complainant  filed  for  copyright  a  series  of  photo- 
graphs for  a  kinetoscope,  illustrating  the  launching  of 

*  The  Act  of  1874  is,  in  effect,  an  amendment  to  §  4962,  al- 
though passed  four  years  prior  to  the  revision  of  the  Statutes,  be- 
cause, as  the  Court  points  out,  the  revision  itself  provides  that  all 
acts  passed  after  December  i,  1873,  control  the  revision  of  1878. 


Notice  of  Copyright  67 

the  Meteor,  and  in  a  suit  for  an  infringement,  the  de- 
fendant objected  on  the  groiind  that  no  valid  copyright 
had  been  obtained  because  only  one  copyright  had  been 
taken  out  and  only  one  notice  of  copyright  printed  on  a 
celluloid  sheet  containing  4500  photographs,  constitut- 
ing the  roll  to  be  used  in  the  kinetoscope.  In  the 
Circuit  Court  of  Pennsylvania  Judge  Dallas  held  that 
it  was  requisite  that  every  photograph  should  be  separ- 
ately registered  and  bear  a  separate  notice  of  copyright, 
no  matter  how  or  for  what  purpose  it  might  be  joined 
to  the  others.  On  appeal  to  the  Circuit  Court  of  Ap- 
peals, his  decision  was  reversed.  Judge  Buffington 
said:  "To  require  each  of  numerous  imdistinguishable 
pictiires  to  be  individually  copyrighted  would,  in  effect, 
be  to  require  the  copyright  of  many  pictures  to  protect 
a  single  one.  .  .  .  When  we  consider  the  positive 
sheet  which  was  copyrighted  we  have  a  stronger  case. 
What  was  thus  copyrighted  was  a  single  celluloid  sheet 
on  which  a  number  of  objects  had  been  photographic- 
ally printed  or  reproduced.  That  these  objects  were 
there  portrayed  by  light  action  or  photography  is  tm- 
questioned.  How  the  negative  was  obtained,  whether 
by  numerous  and  successive  exposures,  is  not  here 
material.  The  statute  provides  for  copyrighting  nega- 
tives ;  but  the  present  issue  is  not  whether  the  negative 
in  question  was  one  covered  by  the  statue,  but  whether, 
when  the  negative  as  a  whole  was  photographically 
reproduced,  the  reproduction  was  a  photograph.  .  .  . 
From  the  standpoint  of  preparatory  work  in  securing 
the  negative,  the  latter  consists  of  a  nimiber  of  different 

In  the  text  of  the  copyright  law,  on  pp.  9-10,  §  4962  is  printed 
as  amended  by  the  Act  of  1874.  The  original  section  omitted  the 
second  alternative  form  of  notice.  See  also  as  to  surplusage  in 
notice,  Hills  v.  Austrich,  120  Fed.  R.  862. 


68  Decisions  of  American  Courts 

views,  but  when  the  negative  was  secured,  the  article 
reproduced  therefrom  was  a  single  photograph  of  the 
whole." 

Judgment  reversed. 

Notice.    When  it  Must  be  on  the 
Photograph. 

Falk  v.  Gast  Lithographing  and  Engraving 
Company. 

Circuit  Court,  Southern  District  of  New  York,  November,  189 1. 
48  Fed.  R.  26a. 

The  complainant  took  and  copyrighted  a  photograph 
of  Julia  Mario  we.  The  defendants  copied  the  photo- 
graph and  in  a  suit  for  the  infringement  alleged  that 
the  copyright  was  invalid  on  these  grounds,  i .  That  no 
notice  was  on  the  photograph ;  2.  That  the  proof  of  the 
deposit  of  two  copies  required  by  law  was  insufficient ; 
3.  That  the  publication  was  \mduly  delayed ;  4.  That 
the  photograph  was  not  a  proper  subject  of  copy- 
right. 

Judge  Coxe,  in  the  Circuit  Court  of  New  York,  held : 
"  The  testimony  for  the  complainant  is  to  the  effect  that 
imusual  care  was  taken  with  the  photographs  of  Miss 
Marlowe  for  the  reason  that  the  complainant  was  tmder 
contract  to  issue  none  that  were  not  copyrighted,  and 
that  none  were  issued  from  his  establishment  without 
the  copyright  notice.  The  difficulty  with  the  defen- 
dant's testimony  is  that  it  may  be  true  and  still  the 
complainant,  in  all  respects,  may  have  complied  with 
the  statute.  In  other  words,  it  is  not  enough  to  show 
that  the  photograph  was  without  the  statutory  notice 
when  it  entered  the  defendant's  possession.     It  must 


Notice  of  Copyright  69 

appear  that  it  was  without  the  notice  when  it  left  the 
complainant's  possession.  There  is  no  evidence  to 
show  this.  If  copied  afterwards  or  put  upon  a  new 
mount  the  complainant  should  not  suffer.  .  .  .  The 
evidence  of  mailing  and  delivery  at  the  office  of  the 
Librarian  of  Congress,  in  the  absence  of  any  proof  to 
the  contrary,  shows  a  sufficient  compliance  with  the 
statute.  The  testimony  of  the  complainant's  business 
manager  that  he  caused  to  be  mailed  to  the  Librarian 
two  printed  copies  of  the  photograph  in  question  (No. 
94)  is  supplemented  by  the  certificate  of  the  Librarian 
that  two  printed  copies  of  a  photograph  entitled 
*  Photograph  No.  94  of  Julia  Marlowe '  were  delivered 
at  his  office.  .  .  .  The  title  was  filed  with  the 
Librarian  September  1 7th,  and  the  copies  were  mailed 
to  him  on  the  day  of  publication,  December  5,  1888, 
two  months  and  eighteen  days  thereafter.  No  author- 
ity is  cited  holding  this  to  be  an  unreasonab'e  delay. 

"The  complainant  testified  that  he  arranged  the  pose 
and  lighting  of  the  photograph  in  question,  worked  up 
the  expression,  and  decided  upon  the  attitude;  and 
the  testimony  of  Miss  Marlowe  that  he  arranged  the 
light,  the  backgrotmd,  and  all  other  details,  and  finally 
posed  her,  when  taken  in  connection  with  the  picture 
itself,  which  certainly  is  artistic  and  imusually  pleasing, 
is  sufficient  to  sustain  the  copyright  within  the  au- 
thority of  Sarony's  case,  iii  U.  S.  53." 

Decree  for  injunction. 

On  appeal  the  decree  was  affirmed  by  the  Circuit 
Court  of  Appeals  (54  Fed.  R.  890).  The  defendant 
raised  the  point  of  failure  to  attach  the  legal  notice  to 
published  copies  on  these  facts :  Falk  issued  to  dealers 
a  sheet  on  which  were  mounted  a  himdred  miniature 


70  Decisions  of  American  Courts 

photographs,  among  them  the  one  in  suit.  These  were 
to  serve  as  samples  to  aid  dealers  in  placing  orders, 
and  the  copyright  notice  was  not  affixed  to  such  pic- 
tures. The  defendant  claimed  this  was  a  publication 
without  the  notice.  In  reference  to  that  contention 
Judge  Shipman  said:  "This  card  or  sheet  of  miniature 
copies  of  photographs  for  the  inspection  of  dealers  is 
not  one  of  the  published  editions  of  the  photographs 
which  it  contained,  within  the  meaning  of  the  section 
[4962].  The  statutes  refer  to  a  published  edition, 
which  is  an  edition  offered  to  the  public  for  sale  or  cir- 
culation. An  exhibition  of  a  card  of  miniature  samples 
to  the  dealers  alone,  for  the  purpose  of  enabling  them 
to  give  orders,  is  not  a  published  edition  within  the 
meaning  of  the  statute." 
Decree  affirmed. 

Publication  Without  Notice. 

Pierce  &  Bushnell  Co.  v.  Werckmeister. 

Circtlit  Court  of  Appeals,  First  Circiiit,  January,  1896. 
7a  Fed.  R.  54. 

The  complainant  purchased  from  G.  Naujok  the 
right  to  take  out  a  copyright  on  his  painting  Die 
Heilige  Cdcilie,  In  January,  1892,  the  painting  was 
exhibited  in  a  gallery  in  Berlin.  In  May,  1892,  com- 
plainant took  out  a  copyright.  In  the  summer  of  1892, 
the  complainant  made  photographic  copies  of  the 
painting.  They  bore  the  legal  notice ;  but  the  painting 
itself  never  had  the  notice.  Defendant  made  and 
sold  photographs  of  the  painting  without  complainant's 
consent.  The  defendant  contended  on  appeal  that 
there  was  no  infringement  because  there  was  no  valid 
copyright,  and  the  copyright  was  invaHd  because  the 


Notice  of  Copyright  71 

painting  was  published  before  being  cop)rnghted. 
Further  he  contended  that  the  failure  to  place  the  legal 
notice  on  the  painting  when  published  prevented  the 
maintaining  of  a  suit  for  infringement  if  there  had  been 
a  valid  copyright  originally. 

The  complainant  contended  that  there  was  no  "  pub- 
lication" by  exhibiting  in  a  public  gallery;  and  that 
the  notice  need  not  be  attached  to  the  published 
original  painting,  but  only  to  copies. 

Colt,  Circuit  Judge,  held;  "That  copyright,  imder 
the  statute,  is  the  exclusive  right  to  publish  a  literary 
or  artistic  work.  Such  work  may  be  a  transcript  or 
reproduction,  as  a  book,  engraving,  or  photograph,  or 
may  itself  be  an  original,  as  a  painting,  statue,  model, 
or  design,  and  such  work  may  or  may  not  be  published 
in  multiple  form.  .  .  .  If  we  confine  ourselves  to 
the  subjects  of  copyright,  and  eliminate  from  our  minds 
any  distinction  between  *copy'  and  'original,*  the 
meaning  of  section  496  2  seems  to  be  clear.  It  begins  by 
declaring  that  *  no  person  shall  maintain  an  action  for 
the  infringement  of  his  copyright  unless  he  shall  give 
notice  thereof  by  inserting  in  the  several  copies  of  every 
edition  published,'  etc.  The  words  'several  copies' 
are  not  used  in  the  sense  of  a  copy  or  a  reproduction 
from  some  original,  but  are  used  in  the  sense  of  each 
individual  copyrighted  thing,  whether  a  copy  or  an 
original,  so-called.  In  Webster's  Dictionary  we  find 
among  the  definitions  of  the  word  'copy*:  'An  indi- 
vidual book,  as  a  copy  of  the  Bible' ;  and  it  is  in  this 
sense  that  the  word  is  used  in  this  section.  We  copy- 
right a  book  under  sections  4952  and  4956  and  section 
4962  then  requires,  that,  in  order  to  maintain  an  action 
for  infringement,  notice  of  copyright  shall  be  inserted 
in  each  book  (whatever  may  be  the  form  of  the  book) 


72  Decisions  of  American  Courts 

which  is  published.  The  fact  that  such  book  may  be  a 
copy  from  some  original  manuscript  is  immaterial  and 
has  nothing  to  do  with  the  notice  required  by  this  sec- 
tion. It  is  the  published  book  or  the  book  which  is 
made  public  by  offering  for  sale  or  otherwise  which 
must  contain  the  notice.  A  book  is  published  in  mul- 
tiple form,  and  no  one  particular  book  is  any  more  en- 
titled to  be  called  an  original  than  any  other.  .  .  . 
We  copyright  a  painting  and  section  4962  requires  no- 
tice of  copyright  upon  the  published  painting,  and  upon 
each  replica  or  reproduction  which  is  published.  Section 
4962  does  not  deal  with  *  copies'  as  distinct  from  'orig- 
inals,' or  with  'originals*  as  distinct  from  'copies,'  as 
those  terms  are  commonly  imderstood ;  but  it  deals  with 
published  copyrighted  things,  and  it  declares  that  no 
action  for  infringement  will  lie  imless  each  copyrighted 
thing  which  is  published  or  made  public,  be  it  a  *  copy* 
so-called,  or  an  '  original '  so-called,  or  another  edition 
or  reproduction  of  such  copy  or  original,  has  inscribed 
upon  it  the  notice  of  copyright. 

"  The  bill  in  this  case  alleges  publication  of  the  paint- 
ing on  or  about  September  15,  1892.  The  evidence 
shows  that  the  painting  was  publicly  exhibited  in 
Berlin  from  January  to  March,  1892 ;  and  at  Mtinich  in 
the  stmimer  of  1893.  Under  these  circumstances  we 
hold  that  the  alleged  copyrighted  painting  has  been 
** published"  within  the  meaning  of  section  4962,  and 
should  have  been  inscribed  with  notice  of  copyright  in 
order  to  entitle  the  plaintiff  to  maintain  this  action  for 
infringement."  * 

Decree  of  Circuit  Court  reversed. 

*  See  also  Werckmeister  v.  Am.  Lith.  Co.,  117  Fed.  R.  360;  Am. 
Press  Ass 'n  v.  Pub.  Co.,  120  Fed.  R.  766;  Higgins  v.  Keuflfel,  140 
U.  S.  428;  Falk  V.  Gast,  54  Fed.  R.  890. 


Notice  of  Copyright  73 

The  case  of  Werckmeister  v.  Pierce  &  Bushnell  Com- 
pany, 63  Fed.  R.  445,  is  reversed  by  this  case. 

Publication  of  a   Painting  without  Notice 
of  Copyriglit. 

Werckmeister  v.  American  Lithographic  Co. 

Circuit  Court,  Southern  District  of  New  York,  Augiist,  1902. 
117  Fed.  R.  360. 

This  case  was  on  substantially  the  same  facts  as 
the  foregoing  case  of  Werckmeister  v.  Pierce  &  Bushnell 
Company  except  that  here  the  painting  was  put  on 
exhibition  without  a  notice  after  copyright  had  been 
taken  out  and  by  the  artist  who  had  sold  the  copy- 
right to  the  complainant,  but  retained  the  picture. 

The  complainant  contended  that  as  he  could  not 
control  the  use  of  the  picture,  he  was  not  boimd  by  the 
requirement  of  the  statute  as  to  notice.  Judge  Thomas 
held  that  this  was  no  excuse.  The  proprietor  of  the 
copyright  had  only  such  rights  as  the  owner  of  the 
painting  assigned  to  him.  The  latter  was  not  pro- 
tected by  the  statute  when  he  failed  to  give  the  re- 
quired notice  on  the  painting.  His  assignee  was  in  no 
better  position,  if  he  failed  to  see  to  it  that  the  notice 
was  given. 

Bill  dismissed. 

Publication  without  Copyright  Notice. 

American  Press  Association  v.  Daily  Story  Pub- 
lishing Company. 

Circuit  Court  of  Appeals,  Seventh  Circuit,  October,  1902. 
120  Fed.  R.  766. 
Defendant  licensed  the  Globe-Democrat  to  publish  a 


74  Decisions  of  American  Courts 

copyrighted  story,  and  the  latter  agreed  to  print  the 
regular  copyright  notice.  This,  through  an  oversight, 
it  failed  to  do.  Complainant  saw  the  story  without  a 
copyright  notice  and  copied  it  in  good  faith,  and  dis- 
tributed it  to  various  newspapers,  which  published  it. 
The  defendant  then  demanded  pay  from  such  papers 
for  the  story.  Complainant  brought  a  suit  to  restrain 
defendant  from  demanding  or  collecting  payment  from 
such  papers. 

The  Circuit  Court  of  Appeals  (opinion  by  Jenkins, 
Circuit  Judge)  held  that  the  complainant's  act  was  an 
infringement,  although  the  story  had  been  published 
without  a  notice.  "  The  copyright  of  the  appellee  (the 
defendant)  was  property  of  which  it  could  not  be  le- 
gally deprived  without  its  consent.  Title  to  copyright 
is  no  more  lost  by  theft  of  the  manuscript  or  practical 
publication  of  it  than  is  one's  title  to  a  horse  lost  by 
the  stealing  of  it,  or  by  the  tmlawful  sale  of  it  to  a 
stranger.  .  .  .  Here  the  appellee  did  not  purport 
by  its  contract  to  make  the  Globe-Democrat  its  agent 
in  any  respect.  It  merely  sold  the  paper  the  exclusive 
right  of  publication  of  the  copyrighted  story  within  a 
limited  territory,  and  upon  the  express  condition  that 
it  should  be  printed  with  the  usual  copyright  notice. 
By  oversight  the  Globe-Democrat  in  respect  of  this  con- 
dition violated  its  contract,  but  we  cannot  compre- 
hend why  that  breach  of  contract  should  be  visited 
upon  the  appellee." 

Injunction  restraining  defendant  from  recovering  from 
newspapers  is  denied.'^ 

*  This  decision  seems  hard  to  reconcile  with  the  case  of  Werck- 
meister  v.  American  Lithographic  Company,  117  Fed.  R.  360. 
Although,  as  the  Court  intimates  in  part  of  its  decision,  the  Globe- 
Democrat  was  not  strictly  an  agent  of  the  defendant,  it  was  never- 
theless responsible  to  the  defendant  to  insert  the  proper  copyright 


Notice  of  Copyright  75 

Publication  witliout  Notice. 

Werckmeister  v.  American  Lithograph  Co. 

Circuit  Cotirt,  Southern  District  of  New  York,  December,   1903. 
126  Fed.  Rep.  244. 

The  complainant  claimed  to  be  proprietor  of  a  copy- 
right in  a  painting  by  one  Sadler  entitled  Chorus.  It 
was  alleged  that  this  copyright  was  obtained  on  April 
16,  1894.  In  a  suit  for  infringement  the  defendant  put 
in  a  plea  that  there  had  been  a  publication  of  the 
painting  during  the  summer  of  1894  by  exhibiting  it 
to  the  public,  and  that  no  notice  of  copyright  was  in- 
scribed on  any  part  of  the  painting.  This  plea  was 
traversed  and  the  complainant,  against  the  objection 
of  the  defendant,  put  in  evidence  of  the  exclusiveness 
of  the  exhibition  referred  to. 

Judge  Wheeler  held  that  the  evidence  was  admis- 
sible, but  that  the  defendant  by  proving  that  an  admis- 
sion fee  was  charged  to  the  exhibition  had  established 
the  fact  of  publication,  and  there  was  no  dispute  as  to 
the  absence  of  the  notice.  Under  §  4962  of  the  Re- 
vised Statutes  such  publication  without  notice  defeats 
any  action  for  infringement. 

Bill  dismissed. 

notice.  According  to  the  Werckmeister  case,  it  was  the  duty  of 
the  defendant  to  see  that  such  notice  was  inserted  on  all  copies  of 
its  story,  and  it  reposed  trust  to  that  extent  in  the  Globe-Democrat 
in  making  with  it  the  contract  whereby  the  latter  agreed  to  insert 
such  notice.  Although  it  was  not  the  fault  of  the  defendant  that 
the  notice  was  not  inserted,  it  was  the  fault  of  the  company  which 
it  had  trusted.  It  seems  (according  to  the  theory  of  the  copyright 
law)  that  the  complainant  was  justified  in  copying  a  story  without 
a  notice.  See  Daly  v.  Walrath,  40  App.  Div.  220.  See  also  as  to 
the  effect  of  failiure  to  print  notice,  Higgins  v.  Keuffel,  140  U.  S. 
428. 


76  Decisions  of  American  Courts 

False  Notice  of  Copyright.* 

McLaughlin  v.  Raphael  Tuck,  Sons,  &  Company. 

Circuit  Court  of  Appeals,  Second  Circuit,  April,  1902. 
115  Fed.  R.  85. 

The  defendant  caused  books  to  be  printed  with  a 
false  copyright  notice  in  Germany,  and  imported  them 
into  this  country  in  1896.  The  statute  then  only  im- 
posed a  penalty  for  printing  a  false  notice.  On  March 
3,  1897,  an  act  was  passed  imposing  a  penalty  on  the 
sale  of  books  bearing  a  false  copyright  notice,  "pro- 
vided that  this  act  shall  not  apply  to  any  importation  of 
or  sale  of  such  goods  or  articles  brought  into  the  United 
States  prior  to  the  passage  thereof."  In  an  action  to 
recover  penalties  for  false  notice  it  was  held  that  de- 
fendant was  not  liable.  The  Circuit  Court  of  Appeals 
affirmed  this  judgment,  on  the  grotmd  that  as  to  the 
act  of  printing  books  bearing  a  false  notice  the  United 
States  law  had  no  application.  The  act  was  done  in 
Germany,  and  a  penal  statute  has  no  extra-territorial 
effect.  As  to  the  sale  of  the  books  in  this  cotmtry, 
many  of  them  were  sold  before  March  3,  1900,  and  it 
was  then  lawful  to  sell  books  with  false  notices,  though 
imlawful  to  print  them.  The  sale  of  such  books  after 
that  date  would  have  been  imlawful  except  for  the 
proviso  quoted  above,  which  permitted  their  sale  in 
case  they  had  been  imported  before  1897. 

Judgment  affirmed. 

*  For  cases  relating  to  pleading  where  a  false  notice  has  been 
printed,  see  Rigney  v.  Tuck,  77  Fed.  R.  173;  Rigney  v.  Button, 
77  Fed.  R.  176;  Ross  v.  Tuck,  91  Fed.  R.  128;  Hoertel  v.  Tuck, 
94  Fed.  R.  844. 


Publication  and  its  Effects  77 

False  Notice;  not  on  Title-Page. 

RiGNEY  V.  Raphael  Tuck  Co. 

Circiiit  Cotirt,  Southern  District  of  New  York,  November,  1896. 
77  Fed.  R.  173. 

The  defendant  in  an  action  for  penalties  for  false 
notice  demurred  to  the  bill  because  it  failed  to  allege 
that  the  false  notice  was  on  the  title-page  or  the  page 
next  following.  Judge  Shipman  overruled  the  de- 
murrer, holding  that  a  false  notice  was  tmlawful  and 
covered  by  §  4963,  even  if  it  were  not  on  the  title- 
page  or  page  following. 


Section  4. 

Publication  and  its  Effects. 

Effect  of  Publication. 

Jewellers'  Mercantile  Agency  v.  Jewellers* 
Weekly  Pub.  Co. 

New  York  Court  of  Appeals. 
155  New  York  241. 

The  plaintiff  was  a  mercantile  agency  which  printed 
a  book  of  credit  ratings.  It  deposited  the  title  and  two 
copies  tmder  the  copyright  act  and  printed  the  re- 
quired notice  in  its  book.  The  plaintiff  claimed  that 
no  copyright  was  obtained  as  a  matter  of  fact,  be- 
cause there  was,  as  it  alleges,  no  publication.  The 
book  was  leased,  not  sold  to  subscribers.  The  defen- 
dant made  use  of  the  plaintiff's  book  and  copied  it  in 
preparing  one  of  "its  own.  The  trial  court  granted 
an    injtmction    restraining    defendant  from    using  or 


78  Decisions  of  American  Courts 

publishing  its  books  copied  from  the  plaintiff's.  The 
plaintiff  contended  that  its  common-law  right  of  lit- 
erary property  had  not  been  divested.  It  was  held 
(opinion  by  Parker,  Ch.  J.)  that:  "No  proposition  is 
better  settled  than  that  a  statutory  copyright  operates 
to  divest  a  party  of  the  common-law  right.  If,  then, 
what  the  plaintiff  did  amounted  to  such  a  publication 
of  the  reference  book  as  was  requisite  in  connection 
with  the  other  steps  taken  to  perfect  a  copyright,*  its 
common-law  rights  were  divested  and  its  remedy 
against  violators  of  the  rights  thus  secured  would  have 
been  by  suit  in  the  United  States  Coiuts.  But  pub- 
lication also  operates  to  destroy  the  common-law 
rights,  whether  a  copyright  be  secured  or  not.  An 
invention,  a  painting,  or  a  book  is  the  property  of  its 
creator.  He  may  keep  it  for  his  own  exclusive  use  or 
enjoyment  if  he  sees  fit.  The  public  has  no  greater 
right  to  it,  however  useful  it  may  be,  than  it  would  have 
to  any  other  part  of  his  personal  property.  But  if  he 
once  publishes  it,  his  property  right  in  it  is  gone  and 

♦The  question  as  to  whether  publication  is  necessary  to  complete 
the  cop5n4ght  has  been  variously  answered.  The  statute  is  silent  on 
the  subject.  But  Drone  says  that  "publication  is  made  an  essential 
prerequisite  to  securing  copyright. "  In  Ladd  v.  Oxnard  (75  Fed.  R. 
703)  Judge  Putnam  said  that  immediately  on  deposit  of  the  two 
copies  of  the  copyright  accrued  without  any  publication,  and  from 
then  until  actual  publication,  there  were  concurrent  remedies  imder 
the  statute  and  at  common  law.  In  the  Jewellers*  Age.  v.  Jewellers* 
Pub.  Co.  (155  N.  Y.  241)  foiu*  of  the  judges  held  that  there  was  an 
actual  publication  by  leasing  of  books  of  credit  ratings,  and  three 
held  that  the  mere  deposit  of  the  two  copies  in  the  Library  of  Con- 
gress, as  required  by  law,  irrespective  of  other  publication,  was 
sufficient  publication  to  perfect  the  cop5rright.  This  last  view  is 
approved  by  Mr.  MacGillivray  in  The  Law  of  Copyright,  p.  261. 
Although  not  finally  determined,  it  is  probably  the  rule  that  the 
copyright  is  perfected  by  deposit  of  title  and  copies  without  any 
publication.  See  also  Callaghan  v.  Myers,  128  U.  S.  617;  Boucicault 
V  Hart,  13  Blatch.,  47;  Falkz;.  Gast,  48  Fed.  R.  262. 


Publication  and  its  Effects  79 

every  one  may  make  use  of  it.  A  person  who  writes  a 
book  may  keep  the  manuscript  without  printing  it,  and 
prevent  any  one  from  seeing  it.  He  may  take  a  still 
further  step  and  cause  the  book  to  be  printed  and  then 
determine  that  it  shall  not  be  seen  by  the  public  and 
store  all  the  printed  copies  away,  and  still  he  has  not 
made  a  publication  of  it  within  the  meaning  of  the 
law.  It  continues  to  be  his  property,  as  he  has  not  yet 
offered  it  to  the  public.  If,  while  the  books  are  thus 
stored  away,  a  copy  should  be  obtained  surreptitiously* 
and  printed,  or  should  the  author  loan  one  of  the  books 
to  a  friend  to  read  and  retiim,  and  in  that  manner  a 
copy  of  the  book  should  fall  into  the  hands  of  some 
one  who  should  attempt  to  print  it,  the  author  would 
be  entitled  to  restrain  publication,  for  the  reason  that 
he  had  not  ttndertaken  to  put  within  the  reach  of  the 
general  public  such  thoughts  or  facts  as  he  may  have 
expressed  or  stated  in  the  book.  ...  It  does  not 
appear  from  this  record  but  that  every  person  in  the 
United  States  was  at  liberty  to  become  a  subscriber  of 
the  plaintiff,  and,  as  such,  entitled  to  a  reference  book. 
Plaintiff's  position,  therefore,  in  effect  is  that  a  distinc- 
tion should  be  drawn  between  selling  or  giving  a  book 
away  and  leasing  it ;  that  to  offer  to  sell  a  book  to  the 
public  or  give  it  to  public  libraries,  where  all  the  pub- 
lic may  have  access  to  it,  is  to  publish  it ;  but  to  lease 
it  to  such  of  the  public  as  care  for  it  is  not  to  publish 
it.  The  latter  is  certainly  an  effective  method  of  put- 
ting the  contents  of  the  book  in  the  possession  of  such 
portions  of  the  public  as  desire  it.  By  this  method  a 
party  parts  with  the  secret  in  such  a  way  that  the 
public  may  know  it,  provided  the  individuals  compos- 
ing such  public  are  willing  to  become  subscribers  and 
*  See  Press  Pub.  Co.  v.  Monroe,  73  Fed.  R.  196. 


8o  Decisions  of  American  Courts 

lease  the  book.  And,  if  leasing  books  to  the  public 
generally  does  not  constitute  a  publication  of  them, 
then  an  author  or  publisher  would  have  but  to  extend 
the  period  of  leasing  from  one  year  to  ninety-nine  or 
nine  hundred  and  ninety-nine  years,  as  is  the  case  in 
certain  leasings  of  railroads,  in  order  to  secure  almost 
as  many  lessees  as  there  would  be  purchasers  if  the 
books  were  offered  for  sale.     .     .     . 

"  It  was  the  privilege  of  any  and  all  persons  who  de- 
sired to  become  subscribers  to  obtain  possession  and 
use  of  the  reference  books.  The  fact  that  the  pub- 
lisher of  the  book  tmdertook  to  place  restrictions  on  the 
use  which  individual  purchasers  could  make  of  it,  the 
effect  of  which  might  be  to  increase  rather  than  dimin- 
ish the  public  demand  for  the  book,  does  not  constitute 
such  a  limitation  as  takes  away  from  the  act  of  the 
plaintiff  its  real  character,  which  is  that  of  publica- 
tion." * 

Judgment  of  the  trial  court  reversed. 

Publication ;  Effect  of  Restricted  Use.f 

Larrowe-Loisette  v.  O'Loughlin. 

Circtiit  Cotart,  Southern  District  of  New  York,  June,  1898. 

88  Fed.  R.  896. 

Complainant's  testator  wrote  a  book  entitled  As- 
similative    Memory.     This     the    complainant     copy- 

*  As  to  what  is  pubKcation,  see  also:  Ladd  v.  Oxnard,  75  Fed.  R. 
703;  Falk  V.  Gast,  54  Fed.  R.  890;  Rigney  v.  Button,  77  Fed.  R. 
176;  D'Olei;.  Star  Co.,  94  Fed.  R.  840;  Larrowe-Loisette  z;.  O'Lough- 
lin, 88  Fed.  R.  896;  French  v.  Kreling,  63  Fed.  R.  621 ;  N.  J.  Dental 
Ass'n  V.  Dentacura  Co.,  57  N.  J.  Eq.  593;  Pierce  &  Bushnell  v. 
Werckmeister,  72  Fed.  R.  54;  Werckmeister  z;.  Amer.  Lith.  Co.,  126 
Fed.  R.  244. 

t  With  respect  to  publication  with  restrictions  as  to  use  see  also 
Jewellers'  Mercantile  Agency  v.  Jewellers'  Publishing  Company,  155 
N.  Y.  241 ;  Ladd  v.  Oxnard,  75  Fed.  R.  703. 


Publication  and  its  Effects  8i 

righted  in  the  United  States  in  1896.  The  defendants 
pubHshed  a  book  entitled  Memory  and  advertised  it 
as  written  by  Professor  Loisette.  Complainant's 
testator,  Loisette,  had  copyrighted  his  book  in  England 
in  1883.  In  1886  he  entered  the  title-pages  of  the  book 
for  copyright  in  Washington,  but  never  deposited  the 
two  copies  required  by  law.  There  was,  therefore,  no 
United  States  copyright  until  the  complainant  secured 
one  in  1896.  For  many  years  Loisette  sold  his  book 
in  connection  with  a  course  of  lectures  on  memory. 
With  each  sale  the  purchaser  signed  a  contract  agreeing, 
under  penalty,  not  to  communicate  the  system  or  con- 
tents of  the  book  to  any  one.  The  complainant  argued 
that  on  account  of  this  contract  there  was  no  "publica- 
tion" of  the  book;  and  that,  therefore,  the  copyright 
of  1896  was  good  if  the  former  one  was  not;  and, 
secondly,  that  the  defendant  could  not  have  obtained 
a  copy  of  the  book  except  by  means  of  a  breach  of 
trust  in  violation  of  the  contract  by  which  it  was  sold, 
and,  therefore,  he  should  be  enjoined  in  equity.  In  a 
suit  for  infringement  Townsend,  District  Judge,  held: 
"No  literary  work  can  be  lawfully  registered  in  Eng- 
land before  it  is  published.  It  must  therefore  be 
assumed  that  the  edition  of  1883  was  published  in 
England.  By  this  publication  Loisette  forfeited  his 
claim  to  a  subsequent  copyright  in  this  coimtry  of  the 
matter  therein  contained.  .  .  .  From  the  agreed 
statement  of  facts  it  appears  that  Loisette  advertised 
widely  and  furnished  a  copy  of  his  book  to  any  one  who 
paid  him  $25.  Those  who  chose  to  form  classes  of  ten 
could  obtain  a  book  for  $10.  The  books  were  sold  ab- 
solutely; no  restriction  being  placed  upon  the  title  or 
upon  their  use  other  than  the  contract  not  to  commimi- 
cate  to  any  person  any  idea  or  part  of  Loisette 's  system 


82  Decisions  of  American  Courts 

of  memory,  I  think  this  distribution  amoimted  to 
publication." 

On  complainant's  second  point  the  Court  said :  "  The 
jurisdiction  of  this  court  is  foimded  only  on  copy- 
right, and  there  is  no  copyright.  Complainant  and  the 
principal  defendants  are  alleged  to  be  citizens  of  New 
York,  and  if  complainant  has  any  cause  of  action 
founded  on  breach  of  trust,  which  the  decision  ia  the 
Jeweller's  Agency  case  would  seem  to  indicate  she  has 
not,  her  place  to  prosecute  it  is  in  the  courts  of  New 
York,  rather  than  in  those  of  the  United  States." 

Judgment  for  defendant. 

Publication.    Effect  of  Restriction  as  to  Use. 

Ladd  v.  Oxnard. 

Circuit  Court,  District  of  Massachusetts,  April,  1896. 
75  Fed.  R.  703. 

Complainants  were  publishers  of  a  copyrighted  credit 
rating  book  in  the  stone,  granite,  and  marble  trade. 
They  claimed  defendants  infringed  their  copyright  by 
copying  ratings  from  it  into  a  similar  book  of  their 
own.  On  application  for  temporary  injunction,  defend- 
ants contended :  i .  That  the  court  had  no  jurisdiction 
because  there  was  no  publication;  the  common-law 
right  of  property,  and  not  the  copyright  under  the 
statute,  was  in  question,  and  as  the  parties  were  both 
citizens  of  Massachusetts,  the  state  courts  only  had 
jurisdiction;  2.  That  works  of  this  character  were  not 
entitled  to  copyright;  3.  That  there  was  no  infringe- 
ment according  to  the  weight  of  evidence. 

Putnam,  Circuit  Judge,  held:  **  It  should  be  said  in 
this  connection  that  while  the  nature  of  the  use  of  the 
complainant's  book  was  sought  to  be  limited  in  the 


Publication  and  its  Effects  83 

manner  which  we  have  explained,  there  was  no  Hmit 
placed  by  the  complainants  on  the  extent  or  number  of 
persons  to  whom  the  book  might  be  distributed  under 
the  conditions  which  they  had  provided.  Though 
adapted  specially  for  persons  engaged  in  the  trades  of 
which  we  have  spoken,  yet  even  these  are  indefinite  in 
number,  and  there  is  no  evidence  that  the  circulation 
was  intended  to  be  limited  to  them,*  .  .  .  We 
are  satisfied  that  there  has  been  a  publication. 

*'  On  the  second  issue,  the  work  of  the  complainants 
was,  of  course,  mainly  in  the  nature  of  a  compilation, 
which  they  claim  to  have  effected  partly  by  interviews 
with  gentlemen  in  the  trade,  but  more  largely  by  corre- 
spondence with  attorneys  and  gentlemen  of  the  trade 
at  various  points  throughout  the  United  States  and 
Canada.  It  is  well  settled  that  compilations  of  this 
character  are  protected  by  the  copyright  statutes,  even 
when  they  involve  only  industry,  and  no  such  degree 
of  originality  as  is  expected  from  authors  of  repute. 
Indeed,  the  quality  and  grade  of  original  work  required 
by  the  courts  under  the  copyright  statutes  are  very 
moderate.  As  to  the  third  issue,  on  the  matter  of  in- 
fringement, we  are  also  satisfied  that  the  complainants 
have  made  out  a  very  striking  and  strong  case  on  the 
proofs  as  they  now  stand,  notwithstanding  the  sworn 
denial  of  the  respondent." 

The  Court  thought,  however,  that  the  complainant 
was  not  entitled  to  an  imconditional  interlocutory  in- 
junction, as  there  was  no  evidence  that  he  would  suffer 
irreparable  damage  if  the  defendants'  book  was  pub- 
lished pending  the  suit  and  as  there  had  been  no  at- 
tempt by  the  defendant  to  deceive  the  public  as  to  the 

♦Judge  Putnam  here  doubts  that  failiu-e  to  publish  and  conse- 
quent remedy  at  common  law  prevents  a  remedy  xmder  statute. 


84         Decisions  of  American  Courts 

identity  of  the  two  books.  Therefore,  it  was  ordered 
that  injiinction  should  be  issued  only  in  case  defendant 
failed  to  file  a  bond  for  $2000  to  cover  damages  that 
might  be  finally  decreed  complainants. 

Publication;  Cut  in  Trade  Journal. 

RiGNEY  V.  Button. 

Circuit  Court,  Southern  District  of  New  York,  November,  1896. 
77  Fed.  R.  176. 

In  an  action  to  recover  penalties  for  a  false  notice  of 
copyright  the  defendant  contended  that  he  was  no^ 
liable,  as  the  cut  bearing  the  false  notice  was  only 
printed  in  a  trade  jotimal,  and  that  therefore  there  had 
been  no  publication.  It  was  held  that  this  was  a  publi- 
cation because  the  paper  might  be  bought  by  any  one, 
although  it  was  of  course  only  of  interest  to  a  certain 
class.  The  complainant's  demurrer  to  the  answer  was 
sustained  on  this  point. 

Effect  of  Publication  in  a  Magazine. 

Holmes  v.  Hurst. 

U.  S.  Supreme  Court,  April,   1899, 
174  U.  S.  82. 

The  Atlantic  Monthly  published  Oliver  Wendell 
Holmes's  The  Autocrat  of  the  Breakfast  Table  serially 
in  twelve  parts,  ending  with  the  October  ntimber  of 
1858.  The  magazine  was  not  copyrighted.  But  in 
November,  1858,  the  author  copyrighted  the  book  as 
a  whole.  The  defendant  has  published  the  same. 
Plaintiff  sued  as  executor  of  Dr.  Holmes  for  an  infringe- 
ment of  copyright.  The  defendant  argued  that  there 
had  been  a  publication  before  November,  1858,  which 
totally  prevented  copyright  thereafter.     Plaintiff  con- 


Publication  and  its  Effects  85 

tended  that  publication  of  the  book  did  not  occur  until 
it  was  published  as  a  complete  volume. 

Mr.  Justice  Brown  said  in  his  opinion :  "  That  there 
was  a  publication  of  the  contents  of  the  book  in  question 
and  of  the  entire  contents  is  beyond  dispute.  It  fol- 
lows from  this  that  defendant  might  have  republished 
in  another  magazine  these  same  numbers  as  they 
originally  appeared  in  the  Atlantic  Monthly.  He  might 
also,  before  the  copyright  was  obtained,  have  published 
them  together,  paging  them  continuously,  and  boimd 
them  in  a  voltime.  Indeed,  the  learned  coimsel  for  the 
plaintiff  admits  that  the  defendant  had  the  right  to 
make  copies  of  these  several  parts,  and  to  sell  them 
separately  or  collectively;  but  insists  that  he  had  no 
right  to  combine  them  in  a  single  volimie.  The  dis- 
tinction between  publishing  these  parts  collectively  and 
publishing  them  in  a  single  volume  appears  to  be  some- 
what shadowy ;  but  assimiing  that  he  had  no  such  right, 
it  must  be  because  the  copyright  protected  the  author, 
not  against  the  republishing  of  his  intellectual  produc- 
tions, or  *the  order  of  his  words,'  but  against  the  as- 
sembling of  such  productions  in  a  single  voltmie.  The 
argument  leads  to  the  conclusion  that  the  whole  is 
greater  than  the  sum  of  all  the  parts  —  a  principle 
inadmissible  in  logic  as  well  as  in  mathematics.     .     .     . 

If  an  author  permit  his  intellectual  production  to  be 
published  either  serially  or  collectively,  his  right  to  a 
copyright  is  lost  as  effectually  as  the  right  of  an  inven- 
tor to  a  patent  upon  an  invention  which  he  deliberately 
abandons  to  the  public — and  this,  too,  irrespective  of 
his  actual  intention  not  to  make  such  abandonment.* 
It  is  the  intellectual  production  of  the  author  which  the 
copyright  protects  and  not  the  particular  form  which 

*  See  also  Mifiain  v.  Dutton,  112  Fed.  R.  1004;  Holmes  v.  Donohue, 
77  Fed.  R.  179. 


86         Decisions  of  American  Courts 

such  production  ultimately  takes,  and  the  word*  book' 
as  used  in  the  statute  is  not  to  be  understood  in  its 
technical  sense  of  a  bound  volume,  but  any  species  of 
publication  which  the  author  selects  to  embody  his 
literary  product.  We  are  quite  unable  to  appreciate 
the  distinction  between  the  publication  of  a  'book' 
and  the  publication  of  the  contents  of  such  book, 
whether  such  contents  be  published  piecemeal  or  en  bloc. 

If,  as  contended  by  the  plaintiff,  the  publication  of 
a  book  be  a  wholly  different  affair  from  the  publication 
of  the  several  chapters  serially,  then  such  publication 
of  the  parts  might  be  permitted  to  go  indefinitely  before 
a  copyright  for  the  book  is  applied  for,  and  such  copy- 
right used  to  enjoin  a  sale  of  books  which  was  perfectly 
lawful  when  the  books  were  published." 

Decree  of  Circuit  Court  of  Appeals  affirming  decree 
of  Circuit  Court  dismissing  the  bill  of  complaint  was 
affirmed. 

This  case  affirmed  the  decisions  of  the  Circuit  Court 
and  of  the  Circuit  Court  of  Appeals  fotmd  in  76  Fed.  R. 
757 ;  80  Fed.  R.  514.  The  case  of  Holmes  v.  Donohue, 
77  Fed.  R.  179,  arose  on  substantially  the  same  facts 
and  was  decided,  following  Holmes  v.  Hurst,  by  the 
Circuit  Court,  Northern  District  of  Illinois. 

Publication  in  Serial  Form. 

Mifflin  v.  Dutton. 
Mifflin  v.  R.  H.  White  Company. 

Circuit  Court  of  Appeals,  First  Circuit,  January,  1902. 
iia  Fed.  R.  1004. 
Aflfirming  the  Decision  of  the  Circuit  Court,  District  Massachusetts. 
107  F.  R.  708. 

The  complainant  was  the  proprietor  of  The  Minis- 
ter's Wooing  by  Mrs.  Stowe,  and  The  Professor  at  the 


Publication  and  its  Effects  87 

Breakfast  TahUy  by  Oliver  Wendell  Holmes.  These 
were  published  in  the  Atlantic  Monthly  in  1859.  There 
was  then  no  copyright  taken  by  the  publishers  of  the 
magazine.  Beginning  with  the  November  number, 
copyright  was  taken  out  on  the  magazine  by  its  pub- 
lishers. Previous  to  that  time  twenty-nine  out  of  the 
forty-two  chapters  of  The  Minister's  Wooing  had 
been  published  serially.  In  October  of  the  same  year, 
Mrs.  Stowe  took  out  a  copyright  on  her  book  as  a  whole 
in  her  own  name,  but  thereafter  the  remaining  chapters 
were  published  in  the  Atlantic  Monthly  without  any 
notice  of  copyright  except  the  general  notice  on  the 
whole  magazine  in  the  name  of  Ticknor  &  Fields,  the 
publishers.  In  December,  1859,  Dr.  Holmes  copy- 
righted in  his  own  name  The  Professor  at  the  Break- 
fast Table.  The  defendants  in  each  case  published  the 
books  without  authority.  In  an  action  for  infringe- 
ment in  the  first  case  the  question  was  whether,  by  al- 
lowing the  Atlantic  Monthly  to  publish  the  last  thirteen 
chapters  of  her  story  without  the  notice  of  copyright 
which  she  had  obtained  in  October,  1859,  Mrs.  Stowe 
lost  her  right  to  protection.  It  was  held  that  she  for- 
feited the  copyright.  It  was  valid  as  to  the  thirteen 
chapters  not  published  at  the  time  the  copyright  was 
taken  out,  but  the  subsequent  publication  of  those 
chapters  in  the  Atlantic  Monthly  without  any  notice  of 
her  copyright  was  fatal.  Judge  Putnam,  in  the  Circuit 
Court  of  Appeals,  said:  **  The  Circuit  Court  foimd  that 
the  publication  of  the  first  29  chapters  without  any 
copyright  abandoned  them  to  the  public,  in  which  it 
was  tmdoubtedly  correct.  It  also  foimd,  in  substance, 
that,  as  the  remaining  thirteen  chapters  were  published 
with  no  notice  of  the  copyright  except  that  which  we 
have  stated  [as  above]  this,  although  giving  informa- 


88  Decisions  of  American  Courts 

tion  that  somebody  had  copyrighted  something,  was 
not  a  sttfficient  notice  of  a  copyright  by  Mrs.  Stowe. 
.  .  .  We  agree  with  this  proposition.  But  the  case 
goes  farther.  The  notice  given  by  the  pubHshers  of  the 
Atlantic  Monthly  was  clearly  a  notice  of  a  supposed 
copyright  secured  by  themselves,  and  it  contained 
nothing  to  indicate  that  it  was  a  notice  of  one  taken 
out  by  Mrs.  Stowe.  The  presumption,  therefore,  is 
that  it  was  a  notice  of  a  copyright  of  so  much  of  the 
Atlantic  Monthly  as  the  publishers  were  entitled  to 
copyright  in  their  own  behalf.  They  could  not  then 
copyright  The  Minister's  Wooing  because  it  had  al- 
ready been  copyrighted,  and  there  cannot  be  two  suc- 
cessive copyrights  in  the  same  publication.  To  permit 
this  would  render  possible  an  extension  of  the  statutory 
period  through  which  a  copyright  runs,which,  of  course, 
the  law  will  not  allow.  Therefore,  on  the  whole,  the 
just  conclusion  is  that  Ticknor  &  Fields  published  the 
November  and  December  numbers  of  the  Atlantic 
Monthly,  not  only  without  any  notice  of  Mrs.  Stowe's 
copyright  which  was  sufficient  in  law,  but  only  with 
one  which  was  presumably  a  notice  of  a  copyright  of 
their  own." 

In  the  second  of  the  cases  the  question  was  whether 
the  copyright  of  Ticknor  &  Fields,  publishers  of  the 
Monthly,  on  the  last  two  numbers  of  1859  did  not  secure 
a  valid  copyright.  The  complainant  contended  that 
the  publishers  acted  as  agents  of  the  author  in  securing 
copyright  for  Dr.  Holmes.  The  Court  held,  however, 
that  there  was  nothing  to  show  that  they  had  authority 
to  take  out  a  copyright.  The  fact  that  the  book  was 
subsequently  copyrighted  in  the  name  of  Oliver  Wendell 
Holmes  and  not  in  the  name  of  Ticknor  &  Fields 
would  indicate  that  the  author  did  not  intend  to  trans- 


Publication  and  its  Effects  89 

fer  the  copyright,  but  to  take  it  out  himself.  But  even 
if  they  had  authority  to  secure  copyright,  the  entry 
of  a  book  called  Atlantic  Monthly  by  Ticknor  & 
Fields  would  not  create  a  valid  copyright  on  a  book 
published  subsequently  under  the  title  The  Professor  at 
the  Breakfast  Table  by  Oliver  Wendell  Holmes. 

The  decision  of  the  Circuit  Court  of  Appeals  was  af- 
firmed in  the  Supreme  Court  (190  U.  S.  260)  upon  the 
same  groimds,  in  both  cases.  With  regard  to  the 
second  case  Mr.  Justice  Brown  said  that  it  was  "im- 
possible to  say  that  entry  of  a  book  imder  one  title  by 
the  publishers  can  validate  the  entry  of  another  book 
of  a  different  title  by  another  person."  * 

Effect  of  Publication. 

Wagner  v.  Conried. 

Circtiit  Court,  Southern  District  of  New  York,  November,  1903. 
125  Fed.  R.  798. 

In  1 88 1  Richard  Wagner  transferred  to  the  firm 
of  B.  Schotts  Sons  the  exclusive  right  of  publication 
for  the  musical-dramatic  work  Parsifal.  The  absolute 
possession  of  the  composition  and  the  libretto  had  been 

*  This  case  does  not  hold  that  if  Ticknor  &  Fields  had  authority 
to  take  out  copyright  their  copyright  would  not  protect  the  articles 
published  serially,  but  that  the  copyright  notice  on  the  magazine 
purported  to  give  notice  of  a  copyright  belonging  to  them,  whereas 
the  notice  in  the  book  published  subsequently  indicated  that  the 
copyright  belonged  to  Dr.  Holmes.  If  the  former  cop5rright  was 
valid  originally,  the  subsequent  pubHcation  without  the  same  notice 
was  fatal  to  the  copyright,  and  the  copyright  in  the  name  of  the 
author  could  not  be  valid  because  there  had  been  a  prior  publica- 
tion in  the  magazine. 


90         Decisions  of  American  Courts 

previously  transferred  to  the  same  firm.  For  this  con- 
tract the  pubHshers  paid  75,000  marks.  The  contract 
reserved  the  acting  right  of  Parsifal  in  regard  to 
theatres  to  Richard  Wagner.  In  1902,  the  pubHshers 
printed  a  duodecimo  edition  in  three  volumes  and  sent 
a  ntmiber  of  copies  to  their  New  York  agent,  by  whom 
they  were  put  on  sale.  This  edition  was  never  copy- 
righted. Thereafter,  the  defendant  being  about  to  pro- 
duce the  work  upon  the  stage,  the  plaintiff  brought  an 
action  to  restrain  him,  and,  on  motion  for  a  preliminary 
injunction,  Judge  Lacombe  held  that  the  contract 
between  Wagner  and  his  publishers  transferred  the  ex- 
clusive right  of  publication  to  the  latter  for  all  countries 
and  not  merely  a  right  to  introduce  his  **  musical-dra- 
matic work"  to  the  world  as  his  agent;  and  that 
although  he  reserved  in  the  contract  the  acting  right  in 
regard  to  theatres  and  although  a  notice  was  printed  in 
the  published  work,  declaring  such  reservation  (which, 
under  German  law,  would  be  sufficient  to  protect  the 
author  in  his  stage  rights)  nevertheless,  the  effect  of 
publication  of  the  whole  work,  accompanied  by  such 
reservation  in  some  country  other  than  Germany,  has  to 
be  determined  by  the  law  of  that  cotmtry,  and  that  it  is 
the  well-settled  law  of  the  United  States  that  no  such 
notice  is  effective  to  reserve  the  stage  right  which  such 
publication  dedicates  to  the  public.  The  plaintiff  con- 
tended that  the  i2mo.  edition  was  incomplete,  but 
Judge  Lacombe  held  that  the  evidence  was  plainly  to 
the  contrary  and  that  although  there  was  some  conden- 
sation, the  three  volumes  contained  the  full  score,  with 
no  bar,  measure,  stage  directions,  or  explanations 
omitted,  and  in  view  of  such  publication,  the  perform- 
ance could  not  be  enjoined. 

Motion  for  preliminary  injunction  denied. 


Publication  and  its  Effects  91 

Publication  of  Architect's  Plans. 

Wright  v.  Eisle. 

New  York  Supreme  Court,  Appellate  Division,  July,  1903. 
86  App.  Div.  356. 

The  plaintiff,  who  was  an  architect,  drew  plans  for  the 
house  of  a  client.  These  were  filed  in  the  Building 
Inspector's  Office  and  the  house  was  built  from  them. 
Thereafter,  the  defendant, who  saw  and  liked  the  house, 
offered  to  buy  the  plans,  which  had  already  been  used 
once,  but  rejected  the  architect's  price  as  exorbitant, 
and  had  his  house  built  by  another  architect.  The 
plaintiff  sued  for  the  value  of  his  plans,  alleging  that  the 
defendant  had  had  them  copied  from  the  records  in  the 
Inspector's  Office.  This  he  contended  was  an  unlawful 
appropriation  of  his  artistic  composition.  The  Appel- 
late Division  of  the  Supreme  Court  held.  Justice  Wood- 
ward writing  the  opinion,  first,  that  the  sale  and  filing 
of  the  plans  in  a  public  office  constituted  a  publication, 
whereby  they  were  dedicated  to  the  public,  and  what- 
ever right  plaintiff  had  to  control  the  first  publication 
did  not  extend  to  the  multiplication  of  subsequent 
copies,  since  no  copyright  had  been  obtained ;  second, 
that  whatever  property  rights  there  might  be  after 
publication  were  vested  in  the  owner  of  the  building 
who  first  purchased  the  plans ;  and  third,  that  there  was 
no  evidence  beyond  the  similarity  of  the  two  houses 
that  the  plans  had  been  copied. 

Complaint  dismissed. 


92  Decisions  of  American  Courts 

Effect  of  Publication  on  Copyright. 

D'Ole  v.  Kansas  City  Star  Company. 

Circtiit  Court,  Western  District  of  Missouri,  June,  1899. 
94  Fed.  R.  840. 

The  complainant,  a  photographer,  published  a  pam- 
phlet entitled  The  Answer^  which  was  used  for  ad- 
vertising his  business.  He  entered  it  for  copyright  on 
March  15,  1897,  and  in  November  of  that  year  the 
defendant  published  in  its  newspaper  several  paragraphs 
copied  from  it.  In  an  action  for  damages  it  was  shown 
that,  in  December,  1896,  the  complainant  had  an  edition 
printed,  as  he  stated  at  the  time,  "for  use  in  the  holi- 
day trade,'*  and  that  this  edition  had  been  distributed 
in  hotels  and  public  places  as  an  advertisement.  Two 
persons  testified  to  receiving  copies  so  distributed  prior 
to  the  date  of  the  alleged  copyright.  In  the  copy- 
righted edition  the  first  words  of  the  preface  were  "  since 
we  issued  the  last  edition  of  this  pamphlet, "  etc.  On 
these  facts  Phillips,  District  Judge,  held  that  there 
was  sufficient  evidence  of  a  publication  previous  to  the 
date  of  filing  for  copyright,  and,  as  a  matter  of  law,  no 
copyright  had  ever  been  obtained.  In  a  dictum  on  the 
question  of  damages  the  Court  said  that  where  a  copy- 
righted pamphlet  was  distributed  gratis  as  an  adver- 
tisement and  had  never  been  sold  or  offered  for  sale,  no 
substantial  damages  could  be  awarded.  In  view  of  the 
decision  on  the  validity  of  the  copyright,  this  point  was 
not  decided. 

Bill  dismissed. 


Publication  and  its  Effects  93 

Author's  Control  over  Published  Works. 

Kipling  v.  Fenno. 

Circtiit  Cotir*,  Southern  District  of  New  York,  December,   1900. 
106  Fed.  R.  69a. 

The  complainant  moved  for  a  temporary  injunction 
to  restrain  the  defendant  from  pubHshing  and  selling 
certain  of  his  stories  except  in  such  collections  and 
tmder  such  titles  as  he  should  authorize.  The  stories 
had  never  been  copyrighted,  but  they  had  been  pub- 
lished. 

Lacombe,  Circuit  Judge,  held:  "Baldly  stated,  the 
proposition  advanced  is  that  an  author,  whose  mental 
productions,  prose,  verse,  and  title,  have  been  given  to 
the  world  by  publication  without  copyright,  so  that 
any  one  is  free  to  reprint  and  sell  the  whole  or  any  part 
of  them,  may  nevertheless  regulate  the  manner  in  which 
such  reprinted  matter  may  be  grouped  and  entitled, 
and  may  restrain  any  application  of  the  title  he  selected 
otherwise  than  as  he  used  or  uses  it.  No  authority  is 
cited  which  supports  any  such  proposition,  and,  in  the 
absence  of  authority,  the  question  of  its  adoption  by 
the  courts  had  better  be  reserved  for  final  hearing.  It 
would  seem  that  the  measure  of  relief  which  authors 
may  obtain  against  unauthorized  publication  of  their 
works  must  be  foimd  in  the  copyright  statutes,  which, 
when  availed  of,  are  an  abimdant  protection  against 
such  publication . " 

Injunction  denied. 


94  Decisions  of  American  Courts 

The  Effect  of  Publishing  Uncopyrighted 
Drama. 

Daly  v.  Walrath. 

New  York  Supreme  Court,  Appellate  Division,  May,  1899. 
40  App.  Div.  220, 

In  1889,  Herman  Sudermann,  a  citizen  of  Germany, 
sold  to  Lederer  the  manuscript  and  stage  rights  of  a 
play  entitled  Die  Ehre.  Thereafter,  it  was  assigned  to 
the  plaintiff  who  put  it  on  the  stage.  The  defendant 
prepared  to  produce  the  same  play  in  1895  tmder  the 
title  Honor.  The  plaintiff  brought  an  action  to  restrain 
her.  Plaintiff  argued  that  he  by  two  assignments  had 
acquired  the  common-law  right  to  protect  his  manu- 
script play  and  the  stage  rights  therein.  The  defend- 
ant contended  that  the  common-law  right  of  property 
had  been  lost  by  reason  of  the  play  having  been  pub- 
lished. This  question  of  fact  was  the  chief  issue  in  the 
case. 

The  trial  court  found  that  there  had  been  a  publica- 
tion of  the  play  in  book  form  in  Germany,  and  that  such 
publication  was  with  the  consent  of  the  author.  On 
appeal  it  was  held,  Judge  Bartlett  reading  the  opinion, 
that  the  publication  of  the  drama  in  print  by  authority 
destroyed  the  common-law  rights  therein.  The  com- 
position became  public  property,  since  a  valid  copyright 
had  not  been  secured.  When  Sudermann  transferred 
to  Lederer  and  Lederer  transferred  to  the  plaintiff  the 
exclusive  right  to  produce  and  perform  Die  Ehre  in 
English  in  the  United  States,  the  plaintiff  held  the 
author's  common-law  right  of  presenting  the  play  in 
this  country ;  but  that  right  became  the  property  of  any 
one  who  chose  to  exercise  it  when  the  original  play  was 


Publication  and  its  Effects  95 

subsequently  published  and  sold  in  book  form  with 
Sudermann's  authority,  if  it  was,  in  effect,  so  published 
and  sold.  To  justify  the  use  of  the  play,  the  defendant 
had  to  show  that  Sudermann  consented  to  the  publi- 
cation. It  was  held  that  the  evidence  established  that 
fact.  Although  Sudermann  violated  his  contract  with 
Lederer  not  to  publish  the  play,  the  breach  of  his  cove- 
nant prevented  Lederer  or  his  assignee  from  enjoining 
the  defendant  from  producing  the  play  which  Suder- 
mann had  seen  fit  to  make  common  property  by  pub- 
lishing is  in  disregard  of  his  agreement. 
Decree  denying  injunction  affirmed. 

For  further  cases  on  the  effect  of  publication,  see  Osgood 
V.  Aloe  Company,  8j  Fed.  R.  4^/0;  Snow  v.  Laird,  g8 
Fed.  R.  813.  As  to  delay  in  publication,  see  Falk  v. 
Cast,  48  Fed.  R.  262.  As  to  unauthorized  publication 
of  manuscript,  see  Press  Publishing  Company  v.  Monroe, 
75  Fed.  R,  ig6.  As  to  what  is  publication,  see  Rigney 
V.  Button,  yy  Fed,  R.  iy6;  Pierce  v.  Werckmeister,  72 
Fed.  R.  54;  Werckmeister  v.  Springer,  63  Fed.  R.  808; 
Werckmeister  v.  American  Lithographing  Company, 
iiy  Fed.  R.  360;  what  is  not  publication,  see  Falk  v. 
Cast,  54  Fed.  R.  8go;  Ladd  v.  Oxnard,  75  Fed.  R.  703; 
Jewellers'  Mer.  Agency  v.  Jewellers'  Pub.  Co.,  155  N.  Y. 
241;  Larrowe  v.  O'Loughlin,  88  Fed.  R.  8g6, 


96  Decisions  of  American  Courts 

Section  5. 

Property  Rights  and  their 
Transfer. 

Unauthorized  Publication  of  Manuscript. 

Press  Publishing  Company  v.  Monroe. 

Circtiit  Court  of  Appeals,  Second  Circuit,  March,  1896. 

73  Fed.  R.  196. 

Complainant,  Harriet  Monroe,  wrote  a  poem  for  the 
dedicatory  ceremonies  at  the  World's  Fair  for  which  she 
received  $1000,  and  she  licensed  the  Columbian  Ex- 
position to  present  the  same  at  the  dedication,  to  fur- 
nish copies  to  the  press  and  publish  the  same  in  the 
dedicatory  history;  but  subject  to  these  concessions, 
she  reserved  her  copyright.  The  New  York  World  ob- 
tained a  copy  of  the  ode  before  it  had  been  published 
by  the  author  or  the  Exposition  Committee  and  with- 
out consent  of  either.  No  copyright  had  been  ob- 
tained, but  the  plaintiff  sued  for  damages  on  the  ground 
that  she  had  a  common-law  property  in  the  poem  until 
it  was  published  by  her  authority.  Complainant  re- 
ceived a  verdict  for  $3,000.  On  appeal,  the  defendant 
(New  York  World)  contended  that  the  license  to  the 
Exposition  carried  with  it  the  common -law  right  of 
property  as  there  was  an  express  reservation  of  the 
copyright  only ;  that  if  it  did  not  pass  by  the  license  it 
was  of  no  importance  because  the  copyright  laws  had 
abrogated  the  common-law  right  of  an  author  in  impub- 
lished  manuscript ;   that  in  any  case,  as  she  had  not 


Property  Rights  and  their  Transfer     97 

proved  any  actual  damages,  she  was  not  entitled  to 
exemplary  or  pimitive  damages  allowed  by  the  trial 
court. 

The  Circuit  Court  of  Appeals  (opinion  by  Judge 
Lacombe)  held :  "  That  the  license  was  not  intended  to 
transfer  the  common-law  property  right  in  the  ode ;  all 
that  was  intended  to  be  conveyed  and  all  that  was  con- 
veyed was  the  right  to  use  the  ode  for  the  peculiar 
purposes  of  the  dedicatory  ceremonies.  That  was  all 
the  committee  needed  and  all  the  concession  imported. 
Upon  exercising  its  right  to  publish,  the  committee 
would  put  an  end  to  the  complainant's  property  right, 
but  imtil  publication  that  right  survived  in  the  author. 
Any  unauthorized  publication  would  be  a  trespass  upon 
that  right  of  property,  and  the  right  of  action  would 
still  be  in  the  author. 

The  contention  of  the  plaintiff  in  error  that  the 
passage  by  Congress  of  the  Copyright  Statutes  has  ab- 
rogated the  common-law  right  of  an  author  to  his  un- 
published manuscript  is  unsupported  by  authority  * 
These  statutes  secure  and  regulate  the  exclusive  prop- 
erty in  the  future  publication  of  the  work  after  the 
author  shall  have  published  it  to  the  world.  But  this 
is  a  very  different  right  from  the  ownership  and  control 
of  the  manuscript  before  publication.  And  that  com- 
mon-law right  may  be  enforced  in  the  federal  courts 
whenever  diversity  of  citizenship  gives  those  courts 
jurisdiction  of  the  parties."     .     .     . 

It  was  held  well  settled  in  the  federal  courts  that  in 
certain  classes  of  cases  jtiries  may  give  pimitive  dam- 
ages to  punish  a  wrong-doer ;  and  that,  in  such  cases, 

*  Ladd  V.  Oxnard.  75  Fed.  R.  703;  Jewellers'  Age.  v.  Pub.  Co.  155 
N.  Y.  241;  N.  J.  Dent.  Soc.  v.  Dentacura  Co.,  57  N.  J.  Eq.  593; 
French  v.  Kreling,  63  Fed.  R.  621. 


98  Decisions  of  American  Courts 

damages  may  be  given  in  addition  to  what  may  be 
proved  to  be  the  actual  money  loss  of  the  plaintiff. 

Decree  affirmed. 

The  Supreme  Court  refused  to  review  this  decision 
of  the  Circuit  Court  of  Appeals  because  the  suit  was 
brought  in  the  federal  courts  on  the  ground  of  the 
diversity  of  citizenship.  It  was  not  a  suit  under  the 
copyright  laws,  but  upon  the  common-law  right  of 
literary  property.  The  only  fact  which  gave  the  Cir- 
cuit Court  jurisdiction  was  that  the  parties  were  citi- 
zens of  different  States.  In  such  case  the  right  of 
appeal  stops  at  the  Circuit  Court  of  Appeals.  (164 
U.S.  105.) 

Unpublished  Manuscript  of  Drama.   . 

French  v.  Kreling. 

Circuit  Cotirt,  Northern  District  of  California,  August,  1894. 
63  Fed.  R.  621. 

Complainant  was  the  owner  of  the  unpublished 
manuscript  of  the  opera  Falka,  which  was  written 
by  one  Famie.  Although  to  a  certain  extent  an 
adaptation  of  an  earlier  French  work  entitled  Le 
Droit  d'Ainessi,  the  songs,  dialogue,  and  situations, 
as  well  as  the  title,  of  the  English  opera  were  original. 
The  musical  score  had  been  published,  but  the  libretto 
containing  the  words  of  the  opera  was  still  impublished. 
The  defendants  obtained  a  copy  of  the  libretto  in  some 
way  tmknown  and  performed  the  opera  in  California. 
In  a  suit  for  an  accounting  of  profits,  defendant  at- 
tempted to  show  publication  of  the  work ;  but  the  evi- 
dence showed  that  all  that  had  been  done  was  to  print 


Property  Rights  and  their  Transfer     99 

the  book  for  the  use  of  actors  in  learning  their  parts. 
It  had  never  been  put  in  circulation.  The  copies  used 
by  the  actors  were  handed  to  them  only  for  such 
purpose. 

Hawley,  District  Judge,  held  that  this  was  no  pub- 
lication and  the  complainant's  right  to  an  accoimting 
was  established,  there  having  been  no  dedication  of  the 
property  rights  to  the  public. 

Decree  for  an  injunction. 

Rights  in  Unpublished  Essay. 

New  Jersey  State  Dental  Society  v,  Denta- 
CURA  Company. 

Court  of  Errors,  New  Jersey,  October,  1898. 
57  N.  J.  Eq.  593. 

An  original  uncopyrighted  essay  on  the  care  of  the 
teeth  was  read  before  the  complainant  society  and,  after 
the  meeting,  deposited  with  the  chairman  to  become  a 
part  of  the  records  of  the  society.  It  was  thereafter, 
handed  to  the  representative  of  a  dental  magazine,  but 
never  published.  The  defendant  company  proctired  a 
copy  from  some  one  connected  with  the  magazine  and 
proceeded  to  use  extracts  from  it  as  an  advertisement 
for  its  tooth  powder.  In  a  suit  to  restrain  such  use  of 
the  essay,  defendant  contended  that  it  had  been  pub- 
lished and  was  therefore  common  property.  Stevens, 
Vice-Chancellor,  held  that  the  reading  at  the  meeting 
did  not  constitute  a  publication.  The  manuscript  was 
originally  the  exclusive  property  of  the  complainant, 
and  as  the  defendant  did  not  claim  imder  a  private 
transfer  to  itself,  it  must  show  a  dedication  to  the  pub- 
lic.    This  it  could  not  do.     Although  several  strangers 


loo        Decisions  of  American  Courts 

were  present  at  the  meeting  of  the  society  where  the 
report  including  the  essay  was  read,  it  did  not  appear 
that  they  had  paid  admittance  fees.  The  meeting  in 
any  case  was  not  open  to  the  general  public.  The 
report  was  not  read  for  the  benefit  of  the  world  at  large. 
It  was  not  presented  to  the  public  nor  accepted  by  the 
public,  but  was  presented  to  and  accepted  by  the  so- 
ciety. The  audience  had  no  more  right  to  appropriate  it 
than  if  it  had  been  a  drama  or  a  lecttire  they  had  paid 
to  hear.  There  was  no  publication.* 
Injunction  granted. 

Licensee's  Use  of  Unpublished  Drama. 

Herne  v.  Liebler. 

New  York  Supreme  Court,  Appellate  Division,  June,  1902. 

73  App.  Div.  194. 

The  plaintiff  licensed  the  defendants  to  present  an 
unpublished  drama  the  manuscript  of  which  belonged 
to  the  plaintiff,  and  the  defendants  agreed  not  to  lease 
the  manuscript  to  any  stock  company  and  not  to  allow 
any  more  than  one  company  at  a  time  to  produce  it. 
There  was  then  granted  to  the  defendants  the  exclusive 
right  to  produce  the  play  in  the  United  States  and 
Canada  for  four  years.  It  was  agreed  that  the  play 
should  not  be  published  or  in  any  manner  dedicated  to 
the  public,  but  should  remain  in  manuscript.  The 
defendants  thereafter  granted  to  certain  play  agents 
the  right  to  lease  the  play  to  stock  companies.  On 
appeal  the  Appellate  Division  held  that  the  plaintiff 

*  For  other  cases  on  common-law  literary  property,  see  Heme  v. 
Liebler,  73  App.  Div.  194;  Belford  v.  Scribner,  144  U.  S.  488;  Max- 
well V.  Goodwin,  93  Fed.  R.  665;  Kipling  v.  Putnam,  120  Fed.  R. 
631 ;  Press  Pub.  Co.  v.  Monroe,  73  Fed.  R.  196. 


Property  Rights  and  their  Transfer    loi 

was  entitled  to  an  injunction.  Justice  Ingraham  said: 
**  I  do  not  think  that  this  contract  gave  to  the  defen- 
dants the  right  to  license  this  play  to  be  produced  in 
any  theatres  except  where  it  was  produced  by  a  com- 
pany to  be  organized  by  them.*  The  agreement  recited 
that  the  parties  thereto  were  prepared  to  enter  into  an 
agreement  *  which  shall  be  limited,  however,  exclusively 
to  matters  in  connection  with  the  production,  man- 
agement, and  exhibition  of  said  play  on  the  terms  and 
conditions  hereinafter  stated.'  The  defendants  were 
not  granted  the  right  to  license  others  to  produce  the 
play,  but  the  right  that  they  had  was  to  produce  the 
play  themselves,  and  the  defendants  agreed  that  during 
that  period  the  said  play  should  not  be  published,  but 
should  remain  in  manuscript  form  *  and  be  used  only 
for  the  stage  production  by  the  said  parties  of  the  first 
part.'  There  was  nothing  in  the  contract  that  gave 
the  defendants  any  right,  except  to  produce  the  play, 
and  it  was  to  be  used  only  for  the  stage  production  by 
them.  It  was  agreed  that  the  defendants  would  con- 
tinue to  produce  the  play  continuously  during  the 
regular  theatrical  seasons  during  the  time  that  the  con- 
tract was  in  force.  This  clearly  contemplated  a  pro- 
duction of  the  play  by  the  defendants,  not  by  stock 

*  The  production  without  authority  of  an  unpublished  drama 
renders  the  producer  liable  in  damages;  and  under  the  New  York 
Statute  is  made  a  misdemeanor. 

"Any  person  who  causes  to  be  publicly  performed  or  represented 
for  profit  any  impublished,  imdedicated  or  copyrighted  dramatic 
composition,  or  musical  composition  known  as  an  opera,  without 
the  consent  of  its  owner  or  proprietor,  or  who,  knowing  that  such 
dramatic  or  musical  composition  is  impublished,  imdedicated  or 
copyrighted  and  without  the  consent  of  its  owner,  or  proprietor, 
permits,  aids  or  takes  part  in  such  a  performance  or  representation, 
shall  be  guilty  of  a  misdemeanor."  Pen.  Code,  §  729,  added  L. 
1899,  c.  475. 


I02         Decisions  of  American  Courts 

companies  that  they  should  license  to  produce  it. 
.  .  .  The  agreement  clearly  contemplated  such  a 
restriction  of  the  use  of  this  play  by  the  defendants. 
Thus,  it  was  provided  that,  if  it  was  mutually  deemed 
advisable,  the  defendants  were  authorized  to  form 
another  theatrical  company  for  the  production  of  the 
play.  Certainly,  if  the  defendants  had  the  right  to 
license  other  theatres  to  use  this  play,  and  to  deliver 
the  manuscript  to  such  other  theatres  for  that  purpose, 
this  clause  would  be  entirely  meaningless." 
Order  denying  injunction  reversed. 

Licensee's  Rights  in  an  Unpublished  Play. 

KoppEL  V.  Downing. 

Court  of  Appeals,  District  of  Columbia,  May,  1897. 

II  App.  Dist.  Col.  93. 

One  Pope  obtained  an  Italian  version  of  the  tragedy 
Samson.  This  he  had  translated  and,  in  1874,  filed 
the  title  for  copyright,  but  never  deposited  the  two 
copies  of  the  book.  He  thereafter  played  the  drama 
several  times.  In  1889,  he  licensed  one  Palmer  to  use 
the  play  during  Salvini's  tour  in  this  country.  Palmer 
employed  the  plaintiff  to  print  the  play.  Pope  had 
made  it  a  condition  of  his  license  that  no  edition  of  the 
play  should  be  published  without  being  copyrighted. 
When  plaintiff  printed  the  play,  he  copyrighted  it  in  his 
own  name.  Defendant  acted  the  play  in  St.  Louis  over 
thirty  times.  In  a  suit  by  the  plaintiff  for  the  infringe- 
ment of  a  copyright,  defendant  objected :  i .  That  the 
plaintiff  never  was  the  proprietor  of  the  play  and  could 
not  acquire  a  copyright;  2.  That  Pope's  copyright  was 
invalid  for  failure  to  deposit  the  two  copies. 


Property  Rights  and  their  Transfer    103 

Alvey,  Chief  Justice,  held  that  plaintiff  had  no  pro- 
prietary interest  in  the  play;  when  Pope  gave  the 
license  to  Palmer  to  use  the  play  he  did  not  intend  to 
part  with  the  ownership  of  the  manuscript,  and  he 
thought  then  that  he  had  a  valid  copyright  himself. 
The  plaintiff  has  no  greater  right  than  Palmer,  through 
whom  he  acquired  title,  and  that  was  a  mere  license  to 
use.  Nor  can  the  plaintiff  be  regarded  a  trustee  suing 
in  behalf  of  Pope.  The  courts  will  recognize  no  such 
evasion  in  support  of  an  invalid  copyright ;  and  more- 
over, if  he  were  suing  as  trustee,  it  must  be  on  the  as- 
sumption that  Pope's  copyright  was  valid  in  its 
inception.  This  was  not  so ;  Pope  had  failed  to  perfect 
his  copyright.  "And  if  Pope  had  failed  and  neglected 
to  perfect  his  copyright  as  originally  claimed,  and  by 
such  failure  and  neglect  abandoned  such  right,  that 
right  could  not  be  revived  by  authorizing  somebody 
else  to  apply  for  and  obtain  a  copyright  in  a  name  dif- 
ferent from  that  of  the  real  proprietor,  sixteen  years 
after  the  filing  of  the  title-page  by  the  proprietor 
himself." 
.  Judgment  for  defendant  affirmed. 

Extent  of  Licensee's  Right.* 

Gabriel  v.  McCabe. 

Circtdt  Court,  Northern  District  of  Illinois,  Jtine,  1896. 
74  Fed.  R.  743. 

Bill  for  injimction.  Complainant  licensed  defendant 
to  publish  a  song  called  When  the  Roll  is  Called  up 

♦For  extent  of  a  licensee's  interest  in  an  unpublished  manuscript, 
see  Press  Publishing  Company  v.  Monroe,  73  Fed.  R.  196;  Heme  v. 
Liebler,  73  App.  Div.  194. 


I04        Decisions  of  American  Courts 

Yonder,  which  he  had  copyrighted.  The  license  per- 
mitted the  publication  in  a  collection  of  religious  songs 
entitled  The  Finest  of  the  Wheat,  No.  2.  Defendant 
exercised  the  license  and  also  published  the  song  in  an 
abridged  edition  of  this  collection,  and  also  in  a  com- 
bined edition  composed  of  the  above  book  and  another 
collection. 

Judge  Grosscup  dismissed  the  bill,  holding  that  the 
publication  as  above  stated  was  within  the  reasonable 
intention  of  the  license;  although  had  the  collection 
been  so  abridged  as  to  result  in  the  publication  of  the 
song  alone  as  sheet  music  it  would  have  been  an  imfair 
use  under  the  license,  yet  such  was  by  no  means  the 
case  here.  Future  editions  of  a  book  may  contain  a 
composition  published  in  an  earlier  edition  by  license, 
even  though  parts  of  the  earlier  edition  are  omitted 
from  the  latter.  To  hold  otherwise  would  practically 
forbid  any  new  editions  of  books  of  compilations,  for 
the  consent  of  all  the  authors  contributing  could  not, 
in  many  instances,  be  obtained. 

Injunction  denied. 

Photographer's  Rights  in  Photographs. 

Press  Publishing  Company  v,  Falk. 

CircTiit  Coiirt,  Southern  District  of  New  York,  January,  1894. 
59  Fed.  R.  324. 

The  defendant  photographed  Marie  Jansen.  No 
charge  was  made.  She  was  to  have  as  many  copies  of 
the  picture  as  she  desired  and  the  photographer  was  to 
have  the  copyright.  The  plaintiff  (The  New  York 
World)  published  her  picture  from  one  of  such  photo- 


Property  Rights  and  their  Transfer    105 

graphs  with  Miss  Jansen's  consent.  The  defendant  in 
this  suit  had  brought  suit  at  law  for  the  statutory  pen- 
alties for  an  infringement.  The  World  then  filed  a  bill 
to  restrain  the  suit  at  law,  alleging  that  it  had  Miss 
Jansen's  permission  to  publish  the  picture  and  that 
she  was  equitably  the  joint  owner  of  the  copyright. 

Wheeler,  District  Judge,  held:  ''When  a  person  has 
a  negative  taken  and  photograph  made,  for  pay,  in  the 
usual  course,  the  work  is  done  for  the  person  so  pro- 
curing it  to  be  done,  and  the  negative,  so  far  as  it  is  a 
picture,  or  capable  of  producing  pictures,  of  that  person, 
and  all  photographs  made  from  it,  belong  to  that  per- 
son; and  neither  the  artist  nor  any  one  else  has  any 
right  to  make  pictures  from  the  negative  or  copy  the 
photographs,  if  not  otherwise  published,  for  any  one 
else.  But  when  a  person  submits  himself  or  herself  as  a 
public  character  to  a  photographer  for  the  taking  of  a 
negative,  and  the  making  of  photographs  therefrom  for 
the  photographer,  the  negative  and  the  right  to  make 
photographs  from  it  belong  to  him.  He  is  the  author 
and  proprietor  of  the  photograph,  and  may  perfect  the 
exclusive  right  to  make  copies  by  copyright.  Obvi- 
ously on  these  pleadings,  and  proofs,  the  negative  was 
not  made  for  Miss  Jansen,  and  she  was  not,  and  is  not 
claimed  to  have  been  a  customer  of  the  former  class. 
That  she  was  the  subject  of  the  picture  would  not, 
alone,  make  it  hers.  The  right  to  it  would  depend  upon 
for  whom  the  work  was  done,  and  the  evidence  shows 
that  what  Mr.  Falk  did  was  done  for  himself.  That 
she  was  to  have  as  many  of  the  photographs  as  she 
wanted  to  do  with  as  she  pleased  did  not  affect  his  ex- 
clusive right  to  make  other  copies.  The  owner  of  a 
copyrighted  book  would  have  the  same  right  to  it  that 
she  had  to  these  photographs,  which  would  not  in  either 


io6         Decisions  of  American  Courts 

case  extend  to  making  copies,  and,  more  clearly,  not  to 
giving  others  the  right  to  make  them," 

Even  had  she  been  an  equitable  owner  of  a  part  inter- 
est, Falk  was  also  a  proprietor,  and  no  consent  in  writing 
as  required  by  law  from  the  proprietor  was  shown  to 
authorize  the  reproduction.* 

Injunction  to  restrain  suit  for  damages  denied. 

Control  of  Copyrighted  Books  for  Sale.f 

Harrison  v.  Maynard,  Merrill,  &  Company. 

Circiiit  Court  of  Appeals,  Second  Circuit,  May,  1894. 
61  Fed.  R.  689. 

The  complainant  had  stored  unbound  sheets  of  books 
with  George  W.  Alexander.  While  so  held  they  were 
injured  by  fire.  Thereafter  they  were  sold  to  one 
Fitzgerald,  who  in  turn  disposed  of  them  to  certain 
Italian  dealers  in  waste  paper,  providing  in  the  contract 
with  such  dealers:  **all  paper  taken  out  of  the  build- 
ings to  be  utilized  as  paper  stock  and  all  books  to  be 
sold  as  paper  stock  only."  The  defendant  came  into 
possession  of  some  of  the  imbound  sheets,  which  he 
bound  and  sold.  Suit  was  brought  for  an  infringement 
of  the  copyright  on  such  books.  In  an  appeal  from  a 
temporary  injunction  the  Circuit  Court  of  Appeals, 
opinion  by  Judge  Shipman,  held:  ''The  question  is: 
Can  the  owner  of  a  copyright  restrain,  by  virtue  of  the 
copyright  statutes,  the  sale  of  a  copy  of  the  copy- 
righted book,  the  title  to  which  he  has  transferred,  but 

*  See  U.  S.  Rev.  Stat.,  §  4964- 

t  As  to  other  cases  relating  to  control  over  copyrighted  works, 
see  Doan  v.  American  Book  Company,  105  Fed.  R.  772;  Kipling  v. 
Putnam,  120  Fed.  R.  631 ;  Straus  v.  Am.  Pub.  Ass'n,  177  N.  Y.  473. 


Property  Rights  and  their  Transfer    107 

which  is  being  sold  in  violation  of  an  agreement  entered 
into  between  himself  and  the  purchaser ;  or  are  the 
remedies  of  the  original  owner  confined  to  remedies  for  a 
breach  of  contract?  So  long  as  the  owner  of  a  copy- 
right retains  the  title  to  the  copies  of  the  book  which  he 
has  the  exclusive  right  to  vend  by  virtue  of  the  copy- 
right, he  can  impose  restrictions  upon  the  manner  in 
which  and  upon  the  persons  to  whom  the  copies  can  be 
sold.  Having  the  exclusive  right  to  vend,  he  has  the 
right  to  appoint  to  whom  the  copies  can  be  sold.  If  his 
agents  to  whom  he  has  entrusted  the  possession  of  his 
books  violate  his  instructions  and  fraudulently  sell  to  a 
person,  with  knowledge  or  notice  of  the  fraud,  such 
fraud  will  be  an  infringement  of  the  copyright,  with 
which  the  original  owner  has  never  parted,  and  can  be 
restrained  by  virtue  of  the  statutes  of  the  United 
States.* 

*  On  this  point  a  recent  case  (Victor  Talking  Machine  Company  v. 
The  Fair,  123  Fed.  R.  424)  decided  by  the  Circuit  Court  of  Appeals 
for  the  Seventh  Circuit  is  relevant,  though  arising  in  regard  to  a 
patent  right.  The  defendant  bought  from  a  jobber  graphophones 
bearing  a  notice  that  they  must  not  be  sold  for  less  than  the  price 
stated  in  the  notice.  It  was  held  that  the  defendant  had  no  right  to 
cut  the  price  and  could  be  enjoined.     The  Court  said: 

' '  The  owner  of  a  patent  who  manufactures  and  sells  the  patented 
article  may  reserve  to  himself,  as  an  ungranted  part  of  his  monopoly, 
the  right  to  fix  and  control  the  prices  at  which  jobbers  or  dealers 
buying  from  him  may  sell  to  the  public,  and  a  dealer  who  buys  from 
a  jobber  with  knowledge  of  such  reservation,  and  sells  in  violation  of 
it,  is  an  infringer  of  the  patent.     .     .     . 

"The  field  of  sale  is  as  much  within  the  monopoly  as  the  others, 
and  so  it  has  been  decided.  The  holdings  were  that  a  patentee  may 
reserve  to  himself  as  an  ungranted  part  of  his  monopoly  of  sale  the 
right  to  fix  and  control  the  prices  at  which  jobbers  and  dealers  may 
sell  the  patented  article  to  the  public,  and  that  whoever  without 
permission  enters  the  reserved  portion  is  an  infringer." 

These  principles  would  seem  to  apply  to  copyrights  to  the  same 
extent  as  to  patent  rights ;  and  to  go  far  towards  preventing  price 
cutting  on  copyrighted  books. 


io8        Decisions  of  American  Courts 

Thus,  if  the  owner  of  a  copyrighted  book  entrusts 
copies  of  the  book  to  an  agent  or  employee  for  sale  only 
by  subscription  and  for  delivery  to  the  subscribers  and 
the  agent  fraudulently  sells  to  non-subscribers,  who  have 
knowledge  or  notice  of  the  fraud,  such  sale  is  an  infringe- 
ment of  the  original  owner's  copyright,  who  can  dis- 
regard the  pretended  sale  and  have  the  benefit  of  all 
the  remedies  which  the  statutes  or  the  law  furnish. 
This  right  to  enjoy  the  benefit  of  the  copyright  statutes 
results  from  the  fact  that  the  owner  has  never  parted 
with  the  title  to  the  book  or  the  copyright,  although  he 
parted  with  the  possession  of  the  book.  But  the  right 
to  restrain  the  sale  of  a  particular  copy  of  a  book  by 
virtue  of  the  copyright  statutes  has  gone  when  the 
owner  of  the  copyright  and  of  that  copy  has  parted  with 
all  his  title  to  it,  and  has  conferred  an  absolute  title  to 
the  copy  upon  a  purchaser,  although  with  an  agreement 
for  a  restricted  use.  The  exclusive  right  to  vend  the 
particular  copy  no  longer  remains  in  the  owner  of  the 
copyright  by  the  copyright  statutes.  The  new  pur- 
chaser cannot  reprint  the  copy.  He  cannot  print  or 
publish  a  new  edition  of  the  book ;  but  the  copy  having 
been  absolutely  sold  to  him,  the  ordinary  incidents  of 
ownership  in  personal  property,  among  which  is  the 
right  of  alienation,  attach  to  it.  If  he  has  agreed  that 
he  will  not  sell  it  for  certain  purposes  or  to  certain 
persons,  and  violates  his  agreement  and  sells  to  an  in- 
nocent purchaser,  he  can  be  punished  for  a  violation  of 
his  agreement;  but  neither  is  guilty,  imder  the  copy- 
right statutes,  of  an  infringement." 

Order  for  injunction  reversed. 


Property  Rights  and  their  Transfer    109 
Agreement  to  Maintain  Prices. 

Straus  v.  American  Publishers'  Association. 

Cotuli  of  Appeals,  February,  1904. 
177  N.  Y.  473. 

The  American  Publishers'  Association,  the  defendant 
in  this  action,  was  formed  by  the  leading  book  pub- 
lishers in  this  cotmtry  for  the  purpose  of  maintaining 
the  selling  prices  of  the  books  published  by  the  several 
members  of  the  association.  The  plaintiff,  the  pro- 
prietor of  a  department  store  in  the  city  of  New  York, 
brought  an  action  to  obtain  an  injtmction  against  this 
association,  alleging  that  it  was  in  violation  of  the 
statute  of  New  York,  (Laws  of  1899  Chap.  690),  which 
prohibits  combinations  and  monopolies  in  the  manu- 
facture and  sale  of  any  articles  in  common  use.  The 
defendants  demurred  to  the  complaint  on  the  groimd 
that  it  did  not  state  a  cause  of  action,  and  the  demtirrer 
was  sustained  at  the  trial ;  but  the  Appellate  Division 
of  the  First  Department  (85  App.  Div.  446)  reversed 
the  order  of  the  Special  Term  and  on  appeal  the  Court 
of  Appeals  affirmed  the  judgment  of  the  Appellate 
Division  by  a  divided  court.  It  was  held,  Chief  Judge 
Parker  writing  the  opinion,  that  the  agreement  entered 
into  by  the  defendants  was  a  violation  of  the  statute. 
The  Court  recognized  the  fact  that  so  far  as  the  copy- 
righted books  controlled  by  the  members  of  the  Asso- 
ciation were  concerned,  an  agreement  to  maintain  rates 
and  to  prescribe  conditions  under  which  they  might  be 
sold,  was  not  unlawful,  since  the  constitution  recog- 
nized the  right  in  Congress  to  create  a  monopoly  for 
the  purpose  of  promoting  the  progress  of  science  and  the 
useful  arts.     While  the  leading  object  of  the  association 


I  lo        Decisions  of  American  Courts 

was  stated  to  be  the  securing  to  the  publisher  of 
copyrighted  books  that  protection,  which  the  copy- 
right law  permits,  it  did  not  stop  there ;  it  also  affected 
the  right  of  a  dealer,  if  he  failed  to  comply  with  the 
rules  of  the  association,  in  regard  to  copyrighted  books, 
to  purchase  for  sa  e  books  not  copyrighted,  although 
on  these  latter  the  association  did  not  tmdertake  to 
restrict  the  selling  price.  A  combination  creating  a 
monopoly  not  protected  by  copyright  was  held  to 
offend  against  the  law  of  the  State  as  much  as  if  it 
related  to  bluestone  or  envelopes,  and  according  to  the 
complaint,  which  had  to  be  accepted  as  true  on  the 
demurrer,  such  an  outcome  was  not  only  possible,  but 
probable.  The  association  endeavored  to  exclude 
from  the  business  of  selling  books  not  protected  by 
copyright  all  who  refuse  to  be  boimd  by  its  rules,  and 
practically  the  members  of  the  association  were  boimd 
to  exclude  any  dealer  who  might  be  suspected  of  selling 
copyrighted  books  at  less  than  the  arbitrary  n^t  price. 
Although  the  agreement  did  not  state  that  it  was  the 
object  of  the  association  to  control  the  sale  of  tmcopy- 
righted  books  and  seemed  to  be  merely  for  the  purpose 
of  protecting  copyrighted  books,  yet  the  effect  was  to 
exclude  dealers  from  selling  books  of  any  description 
if  they  refused  to  be  bound  by  the  rules.  The  com- 
plaint alleged  that,  as  part  of  the  combination,  the 
members  of  the  association  agreed  that  such  net  copy- 
right books  and  all  other  books,  whether  copyrighted  or 
not,  should  be  sold  by  them  to  those  booksellers  only 
who  had  maintained  the  net  retail  prices  of  such  net 
copyrighted  books  for  one  year,  and  to  those  booksellers 
and  jobbers  only  who  would  furthermore  sell  books 
(the  word  "copyrighted"  was  omitted  in  this  connec- 
tion) at  wholesale  to  no  one  known  to  them  to  cut  or 


Property  Rights  and  their  Transfer    1 1 1 

sell  at  a  lower  figure  than  such  retail  prices,  or  whose 
name  should  be  given  to  them  by  the  association  as  one 
who  cut  such  prices.  While  the  leading  object  of  this 
portion  of  the  agreement  was  to  maintain  the  retail  net 
prices  of  copyrighted  books,  it  operated  in  fact  so  as  to 
prevent  the  sale  of  books  to  dealers  who  sold  books  of 
any  kind  to  one  who  retailed  copyrighted  books  at  less 
than  the  retail  price.  The  complaint  further  alleged 
that,  imder  the  agreement,  neither  the  Publishers'  As- 
sociation nor  the  American  Booksellers' Association  nor 
any  of  the  members  of  either  would  sell  or  supply  books 
at  any  price  to  any  dealer,  whether  a  member  of  said 
association  or  not,  or  whether  such  books  were  copy- 
righted or  not,  who  resold  or  was  suspected  of  reselling 
such  copyrighted  books  at  less  than  the  arbitrary  price 
fixed  by  the  combination,  and  that  the  association  or  its 
members  would  not  sell  or  supply  any  books  whatever 
to  any  one  who  resold  or  was  suspected  of  reselling  such 
copyrighted  books  to  any  dealer  who  sold  the  same  at 
less  than  the  arbitrary  net  price.  As  to  the  result  of 
this  agreement  Judge  Parker  said  : 

"The  intended  effect  of  this  is  to  prevent  any  dealer 
who  is  even  suspected  of  reselling  copyrighted  books 
at  less  than  their  net  price  from  obtaining  books  at 
any  price'or  on  any  terms,  whether  copyrighted  or  not. 
And  it  does  not  stop  there,  for  the  members  of  the  as- 
sociation agree  not  to  supply  him  any  books  at  any 
price,  whether  he  resells  copyrighted  books  or  not  at 
less  than  the  arbitrary  net  price,  provided  he  is  sus- 
pected of  selling  to  any  dealer  who  thereafter  sells  the 
same  at  less  than  such  arbitrary  net  price.  And  this 
means — inasmuch  as  the  members  represent  ninety- 
five  per  cent,  of  the  publishers  and  ninety  per  cent,  of 
the  business  done  in  the  book  trade — that  he  may  be 


112        Decisions  of  American  Courts 

practically  driven  out  of  the  business  if  any  one 
chooses  to  suspect  that  a  dealer  to  whom  he  has  sold 
books  has  resold  them  at  less  than  the  price  fixed." 

Order  of  the  Appellate  Division  affirmed.  Gray  and 
Bartlett,  J.  J.,  dissenting.* 

Enforcing  Trade  Agreement. 

Murphy  v.  Christian  Press  Association. 

New  York  Supreme  Cotirt,  Appellate  Division,  March,  1899. 

38  App.  Div.  426. 

The  plaintiff  and  the  Catholic  Publication  Company 
entered  into  a  contract  whereby  the  company,  which 
was  the  owner  of  a  copyright  on  a  prayer  book  and  had 
several  sets  of  plates  of  the  book,  sold  one  of  the  sets 
to  the  plaintiff.  It  was  further  agreed  that  the  book 
should  not  be  sold  at  less  than  a  stated  price.  The 
company  was  dissolved  in  1895  and  the  receiver  sold 
the  other  sets  of  plates  of  this  prayer  book  to  defendant, 
who  had  notice  of  the  agreement  as  to  maintenance  of 
price,  but  nevertheless  proceeded  to  sell  tmder  the 

*  This  decision  of  the  Court  of  Appeals  indicates  how  far  a  com- 
bination to  maintain  prices  is  lawful.  The  opinion  of  the  Court 
recognizes  the  right  of  persons  who  are  entitled  to  a  monopoly  to 
prescribe  terms  on  which  the  articles  controlled  by  them  may  be 
sold.  The  weakness  of  the  defendants'  case  was  very  evidently  in 
their  failure  to  restrict  their  agreement  to  copyrighted  books  solely. 
Had  the  rules  of  the  association  related  solely  to  fixing  the  prices  on 
copyrighted  books,  and  to  prohibiting  the  members  from  selling 
copyrighted  books  to  such  dealers  as  violated  the  rules,  there  would 
have  been  no  ground  for  objecting.  It  was  the  failure  to  exclude 
uncopyrighted  books  from  the  effect  of  the  agreement  which  made 
the  combination  illegal.  The  rules  of  the  association  have  since 
this  decision  been  amended  so  as  to  cover  the  case  of  copyrighted 
books  only. 


Property  Rights  and  their  Transfer    113 

stated  rate.  An  action  to  restrain  such  sale  resulted 
in  an  injunction  for  the  plaintiff.  On  appeal  the  Ap- 
pellate Division  held:  "That  this  action  can  be  main- 
tained against  the  appellant,  and  that  it  is  bound  by 
the  agreement  of  the  Catholic  Publication  Society- 
Company,  from  which  it  acquired  the  copyright  and 
electrotype  plates.  The  agreement  on  the  part  of  the 
defendant's  predecessor  in  title,  though  technically  a 
personal  one,  related  to  the  use  of  its  property,  the 
copyrights,  and  the  plates,  and  obligated  all  who  might 
acquire  that  property  with  notice  of  the  agreement." 
Judgment  granting  injunction  affirmed. 

Use  of  Electrotypes  Restricted  by  Contract. 

Stanley-Bradley  Company  v.  Leslie. 

New  York  Supreme  Court,  January,  1895. 
{Not  reported.) 

The  plaintiff  was  the  assignee  of  certain  electrotypes 
which  had  been  acquired  by  a  publishing  house  from 
the  defendant  Leslie.  By  the  terms  of  the  contract 
under  which  plaintiff's  assignor  had  purchased  the 
plates,  the  defendant,  it  was  alleged,  agreed  not  to  use 
or  reproduce  the  illustrations  made  from  them.  But  in 
violation  of  the  contract  so  made,  the  same  prints  or 
reproductions  of  them  were  subsequently  used  to  illus- 
trate a  work  published  by  the  defendant.  An  action 
was  begun  to  restrain  the  defendant  and  a  motion  made 
for  an  injunction  pending  suit.  Justice  Barrett  denied 
the  motion  upon  the  defendant  stipulating  to  keep  an 
account  of  profits  realized  from  the  sale  of  the  book 
containing  the  illustrations  in  question.  The  action 
was  never  pressed  to  a  final  judgment. 

8 


114        Decisions  of  American  Courts 

Right  in  Works  Done  Under  Commission. 

DiELMAN  V.  White. 

Circuit  Court,  District  of  Massachusetts,  May,  1900. 
102  Fed.  R.  892. 

Complainant  was  commissioned  by  the  government 
to  design  a  mosaic  panel  for  the  Congressional  Library. 
The  contract  was  contained  in  letters.  Complainant 
submitted  sketches  and  thereafter  painted  a  cartoon 
which  he  had  copyrighted.  This  was  sent  to  Venice 
and  reproduced  in  mosaic.  Both  cartoon  and  mosaic 
bore  the  regular  copyright  notice.  After  the  mosaic 
was  set  in  place  defendant  photographed  it.  This 
action  was  brought  to  enjoin  the  publication  of  photo- 
graphs so  taken. 

Defendant  contended  that  there  was  no  right  in  the 
complainant  to  copyright  such  design,  because  the  right 
to  do  so  belonged  to  the  government.  There  was  no 
mention  of  copyright  in  the  correspondence  embodying 
the  contract. 

Lowell,  District  Judge,  held:  ** Taken  by  itself,  the 
contract  seems  to  me  plainly  inconsistent  with  any 
reservation  of  copyright  on  the  part  of  the  artist.  In 
general,  when  an  artist  is  commissioned  to  execute  a 
work  of  art  not  in  existence  at  the  time  the  commission 
is  given,  the  burden  of  proving  that  he  retains  a  copy- 
right in  the  work  of  art  executed,  sold,  and  delivered 
under  the  commission  rests  heavily  upon  the  artist 
himself.  If  a  patron  gives  a  commission  to  an  artist 
there  appears  to  me  a  very  strong  implication  that  the 
work  of  art  commissioned  is  to  belong  unreservedly  and 
without  limitation  to  the  patron.*     .     .     .     The  un- 

*  See  Coll.  En.  Go.  v.  U.  C.  Schools,  94  Fed.  R.  152;  Mallory  v. 
Mackaye,  92  Fed.  R.  479. 


Property  Rights  and  their  Transfer    115 

restricted  right  to  reproduce  a  work  of  art  thus  com- 
missioned is  impHed  in  a  sale  to  a  nation  or  a  mimici- 
paHty  as  well  as  to  an  individual.  .  .  .  While, 
however,  an  accepted  commission  to  paint  a  picture 
ordinarily  imports  an  imrestricted  right  of  reproduction 
in  the  patron,  it  is  doubtless  possible  by  apt  expressions 
in  the  contract  for  the  artist  to  retain  the  copyright 
for  himself.*  Here  it  is  urged  with  much  force  by  the 
complainant  that  the  patron,  the  United  States,  has 
acquiesced  in  this,  the  complainant's  construction  of 
the  contract." 

[The  evidence  of  this  was  that  the  government 
architect  did  not  object  to  the  copyright  when  it  was 
called  to  his  attention,  and  that  the  government  put 
the  mosaic  in  place  bearing  the  copyright  notice.] 
''Upon  the  whole,  considering  the  nature  of  govern- 
ments and  the  habits  of  governmental  officers,  which 
are  matters  of  common  knowledge,  I  do  not  deem  the 
evidence  of  acquiescence  strong  enough  to  overthrow 
what  appears  to  me  the  plain  and  necessary  meaning 
of  the  original  contract." 

Bill  dismissed. 

Alteration  of  Paintings  Restrained* 

Dodge  v.  Allied  Arts  Company. 

New  York  Supreme  Court,  October,  1903. 
{Not  reported.) 

The  plaintiff  painted  under  contract  foiir  pictures  for 
the  lobby  of  the  King  Edward  Hotel,  Toronto.  He  did 
the  work  for,  and  his  own  contract  was  with,  the  defen- 
dant company.     The  proprietors  of  the  hotel,  however, 

*  See  as  to  right  to  retain  copyright  on  sale  of  painting,  Werck- 
meister  v.  Springer,  63  Fed.  R.  808. 


ii6        Decisions  of  American  Courts 

demanded  that  certain  changes  be  made  in  the  paint- 
ings on  the  grotmd  that  their  effect  was  too  sombre; 
as,  for  example,  that  the  background  of  sky  in  one  of 
the  paintings  be  changed  from  black  to  blue.  These 
alterations  the  artist  declined  to  make  for  the  reason 
that  in  several  cases  they  would  render  the  pictures 
historically  inaccurate  and  would  also  violate  artistic 
standards.  The  defendant  being  about  to  execute  by 
other  artists  the  changes  suggested,  plaintiff  brought 
suit  to  enjoin  the  same.  On  motion  for  a  preliminary 
injunction  the  plaintiff  contended  that  if  the  altera- 
tions were  permitted,  it  would  ruin  his  professional 
reputation  and  that  the  proprietors  of  the  paintings 
had  no  right  to  alter  materially  works  of  art  exhibited 
in  a  public  place  as  the  creation  of  the  plaintiff,  where- 
by he  might  be  made  ridiculous  before  all  persons  of 
artistic  taste.  The  defendant  contended  that  the  paint- 
ings were  the  property  of  the  hotel  people,  and  that  they 
could  do  as  they  liked  with  their  own  property  in  alter- 
ing, improving,  injuring  it,  or  destroying  it,  since  after 
the  title  passed  from  the  artist  he  had  no  further  con- 
trol over  the  finished  works.  Justice  McCall  granted 
the  motion  for  an  injunction  pending  suit,  but  as  yet 
(April,  1904)  no  final  decision  has  been  reached. 

Works  Compiled  by  an  Employee. 

Colliery  Engineer  Company  v.  United  Corre- 
spondence Schools  Co. 

Circmt  Cotirt,  Southern  District  of  New  York,  April,  1899. 
94  Fed.  R.  152. 

While  in  the   employ  of  complainant  one  Ewald 
was  engaged  to  compile  and  revise  instruction  papers. 


Property  Rights  and  their  Transfer    117 

Thereafter  he  became  connected  with  defendant  com- 
pany and  complainant  alleged  that  pamphlets  issued 
by  defendant  infringed  their  copyrighted  sheets.  On 
motion  for  preliminary  injtmction  Judge  Lacombe 
held  that  the  articles  compiled  by  Ewald  during  his 
employment  by  complainant  became  the  latter' s  prop- 
erty and  Ewald  had  no  right  to  copy  the  same  even 
from  memory  for  the  use  of  defendant.  On  the  ques- 
tion of  fact  as  to  whether  defendant's  pamphlets  were 
copied  from  complainant's,  it  was  held  that  there  was 
not  sufficient  evidence  thereof  considering  the  nature 
of  the  subject  matter, — questions  and  instructions  in 
mathematics, — in  which  the  compilations  must  neces- 
sarily be  very  similar.  The  system  of  instruction  pur- 
sued was  not  a  subject  of  copyright  and  the  evidence 
of  piracy  of  the  sheets  and  pamphlets  was  not  such  as 
to  warrant  a  preliminary  injunction. 
Motion  denied. 

Play  Written  by  an  Employee. 

Mallory  v.  Mack  aye. 

Circtiit  Court,  Southern  District  of  New  York,  March,  1898. 
86  Fed.  R.  laa. 

Mackaye  made  a  contract  with  Mallory  for  ten  years ; 
the  former  to  receive  a  salary  of  $5000  and  all  inven- 
tions or  plays  he  should  create  to  belong  to  Mallory. 
He  wrote  the  play  Hazel  Kirke,  which  was  copy- 
righted and  put  on  the  stage.  It  was  a  great  success 
under  Mackaye* s  management.  After  a  year  and  a 
half,  Mackaye  claimed  that  Mallory  had  violated  the 
contract  and  accordingly  he  rescinded  the  contract  and 
began  to  present  the  play  Hazel  Kirke  on  his  own 


ii8        Decisions  of  American  Courts 

account.  Complainant  brought  suit  to  restrain  this 
presentation,  and  a  preliminary  injunction  was  granted. 

Wheeler,  District  Judge,  held  that  the  defendant 
had  no  good  groimd  for  rescission,  as  complainant's  acts 
did  not  amoimt  to  a  violation  of  the  contract.  There- 
fore the  defendant  was  not  justified  in  breaking  the 
contract  and  taking  the  play  with  him.  It  was  the 
property  of  the  complainant  imder  the  contract  and 
he  was  entitled  to  the  copyright ;  and  also  to  an  injtinc- 
tion  restraining  the  defendant  from  presenting  the 
play. 

Perpetual  injunction  granted. 

The  Circuit  Court  of  Appeals  affirmed  this  decree  in 
Mallory  v.  Mackaye,  92  Fed.  R.  749. 

Transfer  of  Right  to  Obtain  Copyright. 

Belford  v.  Scribner. 

U.  S.  Supreme  Court,  April,  1892. 
144  U.  S.  488. 

The  complainants  published,  by  agreement,  a  book 
entitled  Common  Sense  in  the  Household,  by  Mrs. 
Terhune  (Marion  Harland)  and  took  out  a  copyright 
in  their  own  name.  The  defendants  appropriated  a 
large  part  of  this  book  in  publishing  a  new  one  of  the 
same  nature,  which  they  sold  at  a  less  price.  A  decree 
in  favor  of  the  complainant  was  made  by  the  Circuit 
Court,  50  Fed.  R.  473,  and  the  United  States  Supreme 
Court  affirmed  the  same.  Mr.  Justice  Blatchford 
said:  "It  is  contended  that  the  plaintiff  is  not  the 
owner  of  the  two  copyrights  in  question,  because  the 
authoress  of  the  book  was  a  married  woman,  residing 
with  her  husband  in  New  Jersey,  when  the  agreement 


Property  Rights  and  their  Transfer    119 

between  her  and  Charles  Scribner  &  Company  was 
made,  on  April  i,  1871 ;  that  at  common  law  a  married 
woman  has  no  interest  in  personal  property  acquired 
by  her  during  marriage,  but  it  belongs  absolutely  to 
her  husband ;  that  no  proof  was  introduced  of  the  pro- 
visions of  the  laws  of  New  York,  or  those  of  New 
Jersey,  or  those  of  Massachusetts,  in  which  latter 
state  the  bill  averred  that  the  authoress  resided  at 
the  time  the  bill  was  filed,  and  no  proof  was  offered 
that  the  laws  of  any  of  those  states  differed  from  the 
common  law,  and  the  presumption  was  that  the  com- 
mon law  was  in  force  in  those  different  states.     .     .     ." 

On  this  point  the  Circuit  Court  said  in  its  opinion 
that,  as  the  proof  showed  that  the  authoress  from 
time  to  time  settled  with  the  owners  of  the  copyright, 
the  Court  would  presume  that  her  legal  title  as  the 
author  of  the  books  was  in  some  due  and  proper  manner 
conveyed  to  and  vested  in  the  persons  who  secured  the 
copyright  thereof ;  and  that  acquiescence  for  so  many 
years,  by  all  the  parties,  in  that  claim  of  proprietorship 
in  the  copyright,  was  enough  to  answer  the  suggestion 
of  the  husband's  possible  marital  interest  in  his  wife's 
earnings.     This  is,  we  think,  a  sound  view. 

The  opinion  of  the  Circuit  Court  further  correctly 
said :  *'It  is  certain  that,  if  there  is  any  ownership  in  this 
work  by  copyright  at  all,  it  is  in  the  complainant,  in 
whose  name  the  copyright  was  taken,  and  now  stands, 
so  far  as  is  shown  by  the  proof  in  this  case.  If  the  law 
of  the  domicile  of  Mrs.  Terhime  entitles  her  husband  to 
any  part  of  her  earnings,  that  is  a  matter  to  be  settled 
between  her  husband  and  the  complainant,  and  which 
the  defendants  cannot  interpose  as  a  defence  to  a  tres- 
pass upon  the  complainant's  property  rights  in  this 
copyrighted  book." 


I20        Decisions  of  American  Courts 

Objection  is  also  made  that  ...  a  printed  copy 
of  the  title-page  of  the  book  first  published  was  de- 
livered at  the  office  of  the  Librarian  of  Congress  at 
Washington,  May  26,  187 1 ;  that  §  4956  of  the  Revised 
Statutes  required  that  two  copies  should  be  delivered 
at  the  office  of  said  Librarian  or  deposited  in  the  mail 
addressed  to  him  "within  ten  days  from  the  publica- 
tion" of  the  book;  that  the  testimony  shows  that  the 
books  were  published  May  27,  1871;  and  that,  there- 
fore, the  two  printed  copies  of  it  were  deposited  one  day 
before  the  publication,  and  the  law  was  not  complied 
with. 

But  we  are  of  opinion  that  the  statute  was  sub- 
stantially complied  with.  The  two  copies  were  de- 
posited before  the  expiration  of  ten  days  after  the 
publication,  and  that  was  all  that  was  necessary.*   .   .  . 

It  is  also  contended  that  the  copyright  of  1880  was 
invalid,  because  no  sufficient  proof  appeared  that  two 
copies  of  that  book  were  duly  deposited.  We  are  of 
opinion  that  the  certificate  of  the  Librarian  of  Con- 
gress, set  forth  in  the  margin,  as  printed  in  the  record, 
that  two  copies  of  the  new  edition  of  the  plaintiff's 
copyrighted  book  were  received  by  him,  November 
15,  1880,  which  was  within  ten  days  after  the  publica- 
tion, was  competent  evidence,  although  the  certifi- 
cate was  not  under  seal. 

It  is  iirged  that  the  decree  ought  to  have  been 
entered  for  the  sum  of  $1902  against  the  defendant 
corporation  alone,  and  that  it  was  error  to  decree  the 
other  two  defendants  to  pay  any  part  of  that  amount ; 
that  those  two  defendants  manufactured  the  books 
complained  of,  and  did  not  sell  them  or  offer  them  for 

*  Under  the  present  statute  the  deposit  of  two  copies  must  be 
made  "  on  or  before  the  day  of  publication,"  R.  S.  §  4956. 


Property  Rights  and  their  Transfer    121 

sale;  that  the  corporation  defendant  published  and 
sold  the  books  and  was  the  only  defendant  which 
received  any  part  of  the  profits  arising  from  their  sale ; 
and  that  it  was  from  the  books  of  account  of  the  cor- 
poration defendant  that  the  accoimt  of  profits  was 
stated  on  which  the  decree  for  damages  in  the  case 
was  based.     .     .     . 

To  this  view  it  is  replied  by  the  plaintiff  that,  as  the 
defendants  Donohue  and  Henneberry  printed  the  books 
by  contract  with  the  corporation  defendant,  and  as, 
tinder  the  copyright  law,  Revised  Statutes,  §  4964, 
both  the  printer  and  the  publisher  are  equally  liable  to 
the  owner  of  the  copyright  for  an  infringement,  and  as 
it  is  to  be  inferred  that  Donohue  and  Henneberry  made 
a  profit  from  printing  the  piratical  books,  they  were, 
therefore,  sharers  in  the  profits  realized  from  the  sale  of 
the  books,  and  were  participes  criminis  with  the  defend- 
ant corporation  in  the  infringement ;  that  the  two  sets 
of  defendants  together  printed  and  published  the  books, 
and  were  practically  partners  in  doing  it,  the  corpora- 
tion doing  one  part  and  the  other  defendants  the  other 
part  of  the  printing  and  publishing ;  and  that  all  the 
parties  concerned  ought  to  be  held  to  an  accoimt 
to  the  owner  of  the  copyright  in  respect  to  the  profits 
derived  from  the  printing,  publishing,  and  selling, 
without  all  of  which  combined  there  could  have  been 
no  infringement.     We  think  these  views  are  soimd. 

It  is  contended  by  the  defendants  that  the  decree 
•ought  to  have  been  only  for  that  proportion  of  the  pro- 
fits realized  from  the  sale  of  the  books  which  was 
derived  from  the  matter  which  had  been  copied  from 
the  copyrighted  books.     .     .     . 

The  rule  is  well  settled,  that,  although  the  entire 
copyrighted  work  be  not  copied  in  an  infringement,  but 


122        Decisions  of  American  Courts 

only  portions  thereof,  if  such  portions  are  so  inter- 
mingled with  the  rest  of  the  piratical  work  that  they 
cannot  well  be  distinguished  from  it,  the  entire  profits 
realized  by  the  defendants  will  be  given  to  the 
plaintiff." 

Decree  affirmed. 

Transfer  of  Rights  by  Foreign  Author,  prior 

to  1891. 

Fraser  v.  Yack. 

Circiiit  Cotirt  of  Appeals,  Seventh  Circuit,  May,  1902. 
116  Fed.  R.  285. 

In  1890  J.  M.  Barrie  was  engaged  in  writing  The 
Little  Minister  for  serial  publication  in  an  English 
magazine.  On  May  8,  1890,  he  assigned  to  J.  W.  Lovell 
the  sole  right  to  publish  the  story  from  advance  sheets 
in  the  United  States  and  Canada,  and  contracted  to 
deliver  the  text  to  him  two  months  before  the  appear- 
ance of  the  last  number  in  England.  The  contract  was 
assigned  to  the  United  States  Book  Company,  and  in 
October,  1 891,  it  took  out  a  copyright.  The  defendants 
put  a  dramatization  of  the  story  on  the  stage.  Com- 
plainant, an  assignee  of  the  book  company,  sued  for 
an  injunction.  The  defendant  contended  that  the 
book  company  had  no  right  to  take  out  a  copyright,  all 
their  interest  being  derived  from  a  contract  executed 
before  the  International  Copyright  Act  went  into  effect 
and  that,  as  at  the  time  of  such  contract  it  was  not 
possible  to  give  them  the  power  to  secure  the  copy- 
right, they  could  not  acquire  it  when  the  law  did 
come  into  effect. 

Jenkins,  Circuit  Judge,  held  that  at  the  time  of  the 


Property  Rights  and  their  Transfer    123 

contract,  which  was  before  the  passage  of  the  Inter- 
national Copyright  Law,  Mr.  Barrie  had  no  right  to  take 
out  a  copyright  in  the  United  States ;  nor  could  he,  a 
foreigner,  confer  on  a  citizen  of  this  country  any  such 
right  to  obtain  a  copyright  in  his  work.  Therefore  it 
could  not  have  been  within  the  intent  of  the  parties  to 
the  contract  to  assign  a  power  to  copyright.  Unless 
Lovell  became  the  owner  and  proprietor  of  the  manu- 
script so  as  to  acquire  the  whole  property  in  the  same, 
he  could  not  subsequently,  upon  the  passage  of  the  law 
of  1 89 1,  take  advantage  of  the  international  copyright. 
The  Court  held  that  the  only  right  transferred  by  the 
contract  was  that  to  have  the  advance  sheets  before  the 
completion  of  the  serial  in  England.  This  would  give 
Lovell  the  power  to  get  his  book  on  the  market  first,  and 
that  was  the  only  thing  it  was  possible  for  him  to  acquire 
from  the  British  author  which  would  be  of  any  advan- 
tage to  him  prior  to  the  International  Copyright  Act. 
Therefore  neither  Lovell,  nor  his  assignee,  the  book 
company,  could  acquire  a  valid  copyright  in  the  book. 
Decree  dismissing  hill  affirmed. 

For  cases  relating  to  the  transfer  of  property  rights 
in  literary  works  see  Hoyt  v.  Bates,  81  Fed.  R.  641; 
Patterson  v.  Ogilvie,  iig  Fed.  R.  451;  Press  Publishing 
Company  v.  Monroe,  73  Fed.  R.  ig6;  Fraser  v.  Yack, 
116  Fed.  R.  285;  Belford  v.  Scribner,  144  U.  S.  488; 
Black  V.  Allen,  j6  Fed.  R.  ^64;  Dielman  v.  White,  102 
Fed.  R.  892;  Doan  v.  American  Book  Co.,  10 j  Fed.  R. 
^72;  Gabriel  v.  McCabe,  74  Fed.  R.  743;  Harrison  v. 
Maynard,  61  Fed.  R.  689;  Heme  v.  Liebler,  73  App. 
Div.  194;  Murphy  v.  Press  Ass'n,  38  App.  Div.  426. 


124        Decisions  of  American  Courts 
Section  6. 

Infringements  and  Unfair  Use. 

Infringement;  Effect  of  Slight  Alterations. 

FiSHEL   V.    LUECKEL. 

Circuit  Court,  Southern  District  of  New  York,  December,  1892. 
53  Fed.  R.  499. 

The  Brooklyn  Photogravure  Company  made  copies 
of  certain  etchings  and  engravings  copyrighted  by 
complainants.  It  omitted  the  tints,  title,  and  plate 
mark  and  shipped  the  pictures  to  London  to  defendants. 
The  defendants  claimed  these  were  not  ** copies"  tmder 
the  copyright  act,  because  they  lacked  such  character- 
istics of  the  original.  The  defendant  also  contended 
that  they  were  not  liable  because  the  Photogravure 
Company  was  not  their  agent  and  because  they  had  no 
intention  of  infringing  a  copyright. 

Townsend,  District  Judge,  held :  "  The  evidence  shows 
that,  although  it  is  imusual  to  tint  and  mark  such 
pictures,  yet  incomplete  copies  such  as  were  produced 
by  the  photogravure  company  would  have  some  market 
value.  This  fact  alone  would  seem  to  be  sufficient  to 
establish  the  infringement.  But  the  suit  is  brought 
under  §4952  of  the  Revised  Statutes,  which  se- 
cured to  the  complainants  the  '  sole  liberty  of  print- 
ing, reprinting,  publishing,  completing,  and  copying,' 
etc.,  these  engravings.  The  object  of  this  law  is  to 
protect  the  results  of  the  creative  genius  of  the  com- 
poser or  designer.     The  appropriation  of  a  part  of  the 


Infringements  and  Unfair  Use         125 

work  is  no  less  an  infringement  than  the  appropriation 
of  the  whole,  provided  'the  alleged  infringing  part 
contains  any  substantial  repetitions  of  any  material 
parts  which  are  original  and  distinctive.'  Here  the 
defendants  had  the  whole  picture  copied  except  the 
plate  mark  and  title.  They  omitted  the  mere  work  of 
the  artisan ;  they  appropriated  the  genius  of  the  artist. 
The  question  is  not  whether  a  copy  is  marketable ;  but 
whether  it  is  piratical.* 

There  is  no  equity  in  this  claim  of  the  defendants. 
The  copyright  has  been  infringed.  The  allegation  of 
the  defendants  that  they  had  no  intention  to  infringe 
the  copyright  is  no  defence  in  this  case.  Where  the 
infring  ment  is  otherwise  established,  the  intention  is 
immaterial. 

The  defendants  further  claim  that  they  are  not  lia- 
ble for  infringement,  because  the  photogravure  company 
was  not  their  agent,  but  was  an  independent  contractor, 
and  agreed  to  take  the  risk  of  infringement.  The  evi- 
dence shows  that  the  defendants  bought  the  pictures 
from  the  complainants,  furnished  them  to  the  photo- 
gravure company,  ordered  the  copies  made,  and  gave 
general  directions  as  to  how  the  work  should  be  done. 
The  defendants  procured  the  infringing  act ;  they  are 
therefore  liable  as  joint  tort-feasors.     ... 

The  infringement  having  been  established,  the  ap- 
propriate relief  in  a  court  of  equity  is  by  an  injunction 
and  account  of  profits.  And  'the  court  will  grant  an 
injunction  without  proof  of  actual  damage.'  The 
right  to  an  account  of  profits  is  incident  to  the  right  to 
an  injunction  in  copyright  cases." 

Decree  for  injunction. 

*  Falk  V.  Donaldson,  57  Fed.  R.  32 ;  Springer  v.  Falk,  59  Fed.  R^ 
707. 


126         Decisions  of  American  Courts 

Infringement.    Effect  of  Alterations. 

Falk  v.  Donaldson  Lithographing  Co. 

Circuit  Court,  Southern  District  of  New  York,  July,  1893. 
57  Fed.  R.  32. 

The  complainant  posed  and  photographed  JuHa 
Marlowe  as  "Parthenia"  in  the  play  of  Ingomar  the 
Barbarian.  The  defendants  copied  this  photograph. 
In  a  suit  for  an  injtinction  the  defendants  contended : 
I.  The  copyright  was  not  properly  secured  by  reason 
of  failure  to  deposit  copies  within  ten  days  after  pub- 
lication; 2.  That  the  picture  was  not  entitled  to  copy- 
right; 3.  That  the  lithograph  was  not  a  copy  of  the 
photograph  and  did  not  infringe  the  same.  Judge 
Townsend,  held :  i .  That  the  law  was  complied  with  as 
to  depositing  the  two  copies  within  ten  days  of  publica- 
tion. '*It  is  not  necessary  that  the  copies  should  be 
mailed  after  publication.  If  mailed  before,  they  are 
mailed  within  ten  days  of  publication."  * 

On  the  second  point  of  defendants  it  was  held  that 
the  artistic  skill  in  posing  a  subject  was  sufficient  to 
entitle  the  photographer  to  a  copyright  on  his  picture,  f 

On  the  third  point  of  defendants  Judge  Townsend 
held:  " The  question  presented  here  is  whether  the  de- 
fendants have  so  far  copied  the  design  of  complainant 
as  to  appropriate  his  manifestation  of  his  conception,  or 
a  substantial  part  thereof.  The  lithograph  is  not  strictly 
a  copy  of  the  photograph.     It  differs  from  it  in  various 

*  See  Belford  v.  Scribner,  144  U.  S.  505.  The  law  in  this  respect 
has  been  changed  by  the  present  statute.  It  is  necessary  now  to 
make  the  deposit  on  or  before  the  date  of  publication. 

t  As  to  photographs  being  entitled  to  copyright,  see  Lithographing 
Company  v.  Sarony,  iii  U.  S.  60;  Falk  v.  Engraving  Company,  48 
Fed.  R.  262;  Bollesi;.  Outing  Co.,  175  U.  S.  262;  Cleland  v,  Thayer, 
121  Fed.  R.  71. 


Infringements  and  Unfair  Use        127 

ways.  Some  forty  differences  have  been  suggested  by 
experts  introduced  by  defendants.  .  .  .  The  Htho- 
graph  lacks  the  artistic  excellencies  of  the  photograph, 
but  I  cannot  understand  how  the  fact  that  an  at- 
tempted appropriation  has  been  inartistically  accom- 
plished can  help  the  infringer.  If  a  painter  originates 
and  copyrights  a  work  of  art,  can  a  chromo  manufac- 
turer copy  the  design,  to  advertise  the  wares  of  a  mer- 
chant, and  defend  against  an  action  on  the  ground  that 
the  mechanic  has  not  caught  the  spirit  of  the  artist,  or 
mixed  the  pigments  in  the  same  tones  of  color?  Is  the 
sculptor  compelled  to  see  his  life  work  in  marble  ap- 
propriated and  modelled  in  soap  or  sugar,  because, 
forsooth,  'the  dimples  are  lacking,'  or  'the  one  is 
three  or  four  times  larger  than  the  other '  ?  And  yet 
these  are  among  the  reasons  assigned  by  the  experts  for 
the  defendants  why  there  is  no  similarity  between  the 
photograph  and  the  lithograph.  (See  Falk  v.  Litho- 
graphing Company,  48  Fed.  R.  678.)  .  .  .  Im- 
perfect and  comparatively  lifeless  as  the  lithograph  is, 
yet  it  needs  no  expert  to  show  that,  although  varying 
somewhat  in  design,  it  is  a  copy  of  the  conception  of 
complainant.  .  .  .  Defendants  claim  that  the  value 
of  the  photograph  has  not  been  impaired  by  the  publi- 
cation of  the  lithograph,  and  there  is  no  infringement 
because  the  photograph  and  the  lithograph  are  not 
rivals  and  are  not  in  competition  in  any  way.  This 
fact  does  not  affect  the  question  of  infringement,  but 
only  the  measure  of  damages.  The  measure  of  com- 
plainant's rights  is  not  limited  by  the  mere  fact  that 
the  lithograph  would  not  displace  the  photograph  in 
the  market.  He  is  entitled  to  any  lawful  use  of  his 
property  whereby  he  may  get  a  profit  out  of  it.'' 
Decree  for  injunction  and  accounting. 


128        Decisions  of  American  Courts 

Infringement.    Slight  Alteration. 

Springer  Lithographing  Company  v.  Falk. 

Circuit  Court  of  Appeals,  Second  Circuit,  February,  1894. 

59  Fed.  R.  707. 

The  complainant  Falk  had  copyrighted  a  photo- 
graph of  Lillian  Russell.  •  By  combining  this  picture 
with  one  of  Pauline  Hall,  another  actress,  the  defendant 
made  a  composite  photograph.  A  suit  for  infringing 
a  copyrighted  photograph  was  brought  and  the  com- 
plainant at  the  trial  recovered  $3000.  The  defendant 
appealed  from  the  judgment  on  four  groimds :  i .  That 
the  Coiirt  refused  to  charge  that  to  be  an  infringement 
of  the  complainant's  picture  the  defendant's  picture 
must  be  substantially  a  copy  of  it.  That  is,  the  two 
pictures  must  be  substantially  identical.  The  Court 
charged  *'it  is  not  necessary  that  the  copies  should  be 
exact  copies ;  it  is  necessary  that  the  infringer  should 
appropriate  a  substantial  portion  of  the  distinguishing 
ideas  and  characteristic  features  of  the  original  photo- 
graph to  make  up  a  lithograph."  The  Circuit  Court  of 
Appeals  held  (Judge  Lacombe  writing  the  opinion) 
that  this  charge  was  correct  and  there  was  evidence 
that  a  substantial  portion  of  the  copyrighted  picture 
had  been  appropriated.  2.  The  defendant  objected 
because  a  photograph  of  Pauline  Hall  was  admitted 
in  evidence,  though  no  infringement  of  it  was  alleged. 
This  was  held  no  ground  for  reversal,  as  it  coiild  not  have 
prejudiced  the  defendant  with  the  jury,  though  it  might 
have  been  irrelevant.  3.  It  was  objected  that  the  trial 
judge  excluded  the  question  "Has  the  production  of 
this  lithograph  interfered  with  the  sale  of  the  photo- 
graphs?"    This  ruling  was  held  correct  because  the 


Infringements  and  Unfair  Use        129 

action  was  for  a  penalty  which  cotild  be  recovered, 
although  no  actual  damage  was  sustained.  4.  The 
defendant  objected  also  that  the  copyrighted  photo- 
graph did  not  bear  the  proper  notice.  This  point  was 
not  considered  on  appeal  because  it  had  not  been  raised 
at  the  trial. 

Judgment  affirmed. 

For  other  cases  as  to  infringement  see  Henderson  v. 
Tompkins,  60  Fed.  R.  yj8;  American  Publishing  As- 
sociation V.  Daily  Story  Publishing  Company,  120  Fed. 
R.  y66;  Am^r.  Trot.  Reg.  Ass'n  v.  Gocher,  70  Fed.  R. 
237;  Brady  v.  Daly,  175  U.  S.  148;  Falk  v.  Brett,  48 
Fed.  R.  678;  Harper  v.  Ranous,  67  Fed.  R.  go4;  Howell 
V.  Miller,  gi  Fed.  R.  i2g;  Kipling  v.  Putnam,  120  Fed. 
R.  631;  Champney  v.  Haag,  121  Fed,  R.  g44;  Stern  v. 
Rosey,  17  App.  D.  C.  562. 

Infringement.    One  Scene  of  a  Copyrighted 

Play. 

Brady  v.  Daly. 

United  States  Supreme  Court,  November,  1899. 
175  U.  S.  148. 

After  obtaining  an  injunction  against  W.  A.  Brady, 
one  of  the  defendants  in  Daly  v.  Webster,  in  an  equity 
suit  restraining  the  production  of  the  railroad  scene, 
(see  page  48),  Augustin  Daly  brought  an  action  at  law 
to  recover  the  statutory  damages.  (Daly  v.  Brady, 
69  Fed.  R.  285.)  The  Circuit  Court  held  that  the 
defendant  was  liable  under  §  4966  for  $6300  (126  per- 
formances at  $50.00).  The  Circuit  Court  of  Appeals 
(83  Fed.  R.  1007)  affirmed  the  judgment  and  an  appeal 
was  taken  to  the  Supreme  Court.  The  appellant  con- 
tended that  the  §  4966  provided  for  a  penalty  and  not 


I30        Decisions  of  American  Courts 

for  damages,  and  therefore  that  the  Circuit  Court  had 
no  jurisdiction  in  the  case,  as  the  district  courts  have 
exclusive  jurisdiction  of  actions  for  penalties ;  and  that 
§  4966  only  applied  when  substantially  the  whole  of  a 
copyrighted  play  was  taken,  and  not  when  merely  a 
single  incident  was  produced. 

Mr.  Justice  Peckham  held  that  the  statute  in 
using  the  word  ''damages"  did  not  mean  a  forfeiture 
or  penalty,  as  it  is  difficult  to  prove  the  exact  amoimt 
which  the  proprietor  of  a  play  may  suffer  by  reason  of 
an  infringement.  It  is  probable  that  Congress  intended 
to  provide  a  remedy  so  that  the  proprietor  could  recover 
a  certain  amount  of  damages  without  proof  of  what  his 
actual  loss  had  been.  In  the  face  of  the  difficulty  of 
determining  the  amount  of  damages,  a  minimum  sum 
is  provided  in  any  case,  with  the  possibility  of  recover- 
ing a  larger  amotint  on  proof  of  greater  damage. 
The  idea  of  punishment  is  not  so  much  suggested  as  the 
desire  to  provide  for  compensation  to  the  proprietor. 
Consequently  the  Circuit  Court  had  jurisdiction,  this 
not  being  an  action  for  the  recovery  of  a  penalty. 
As  to  the  second  contention,  it  was  held  that  the  judg- 
ment in  the  prior  equity  suit  which  was  put  in  evidence 
was  conclusive  between  these  parties,  and  the  fact  was 
established  by  that  record  that  the  railroad  scene  was 
a  dramatic  composition  and  was  a  substantial  part  of  a 
copyright  play.*  Upon  the  question  whether  the  ap- 
propriation of  a  part  of  a  copyrighted  play  constituted 
an  infringement,  the  Court  approving  the  ruling  in 
Daly  V.  Webster,  56  Fed.  R.  483,  held  that  any  taking 
of  a  substantial  part,  though  less  than  the  whole  work, 

*  As  to  protection  against  infringement  of  a  part  of  a  copy- 
righted drama,  see  also:  Henderson  v.  Tompkins,  60  Fed.  R.  758; 
Daly  V.  Webster,  56  Fed.  R.  483. 


Infringements  and  Unfair  Use        131 

was  piracy.  It  was  also  held  that  by  bringing  a  suit 
for  an  injunction  and  an  ac  ounting  of  profits,  and 
recovering  judgment  therein,  the  complainant  had  not 
made  such  an  election  as  would  bar  him  from  maintain- 
ing this  suit. 

Judgment  affirmed. 

Infringement.    City  Directory. 

Maloney  v.  Foote. 

Circuit  Court,  Northern  District  of  Georgia,  April,  1900. 
loi  Fed.  R.  264. 

Complainant  and  defendant  agreed  to  work  together 
in  publishing  their  respective  directories  of  Atlanta. 
They  were  to  collect  the  facts,  set  the  type,  etc.,  jointly. 
Complainant  was  to  have  the  right  to  take  the  first 
impressions  from  the  type  and  defendant  was  not  to 
publish  certain  names  that  appeared  in  the  first  edition. 
This  last  restriction  defendant  disregarded.  After  de- 
fendant's edition  was  printed  and  ready  for  publica- 
tion complainant  obtained  a  copyright  on  the  directory. 
He  then  brought  suit  for  an  injimction  on  the  groimd 
that  defendant  had  infringed  his  copyright. 

Pardee,  Circuit  Judge,  held  that  there  was  no 
infringement  on  these  facts,  because  all  acts  said  to 
constitute  the  infringement  were  done  before  the 
copyright  was  obtained ;  whatever  violation  of  the  con- 
tract there  may  have  been,  there  was  no  violation  of  the 
copyright,  and  it  is  only  in  the  latter  case  that  the 
Circuit  Court  has  jurisdiction. 

Temporary  injunction  denied. 


132        Decisions  of  American  Courts 

Infringement.    Copy  of  a  Copy  on  Infringe- 
ment. 

Champney  v.  Haag. 

Circuit  Coiirt,  Eastern  District  of  Pennsylvania,  March,  1903. 
lai  Fed.  R.  944. 

Complainant  had  a  copyright  on  a  painting  which 
was  photographed  by  Curtis  and  Cameron,  who  copy- 
righted their  photograph.  Defendants  copied  the 
photograph. 

Held,  that  the  defendants'  reproduction  was  not  a 
copy  of  complainant's  painting,  but  of  the  photograph ; 
that  the  owners  of  the  photograph  might  have  an  action 
for  infringement,  but  that  complainant  had  none.* 

Judgment  for  defendant. 

Infringement.    Reproduction  by  Pliono- 
graph. 

Stern  v.  Rosey. 

Court  of  Appeals,  District  of  Columbia,  February,  1901. 
17  App.  Dist.  Col.  56a. 

Plaintiff  was  the  proprietor  of  two  copyrighted  songs : 
Take  Back  your  Gold,  and  Whisper  your  Mother*s 
Name.     Defendant  took  these  songs  and  had  them 

*  The  principle  involved  in  the  decision  in  this  case  seems  incon- 
sistent with  the  provisions  of  the  copyright  law.  That  the  photo- 
graph was  copied  from  another  taken  of  the  original  painting  makes 
it  no  less  a  copy  of  the  original.  This  decision  apparently  indicates 
an  absolutely  safe  way  to  pirate  copyrighted  paintings.  The  doc- 
trine of  the  case  is  contrary  to  the  principles  of  the  English  courts. 
In  Lucas  v.  Williams  (1892),  2  Q.  B.  113,  where  it  appeared  that  the 
photograph,  which  was  alleged  to  infringe  a  painting,  was  directly 
taken  from  an  engraving  which  was  an  exact  copy  of  the  painting, 
upon  which  the  plaintiff  had  a  copyright,  it  was  held  that  this  was 
evidence  to  prove  the  infringement  and  that  the  jtuy  might  infer 
that  the  photographs  sold  by  the  defendants  were  copies  of  the 
original  picture. 


Infringements  and  Unfair  Use        133 

Sling  into  a  phonograph,  thereby  obtaining  a  "master- 
record,"  from  which  other  records  were  made.  In  a 
suit  for  infringement  of  the  copyright,  plaintiff  con- 
tended that  this  was  "copying"  his  song  tmder  the 
copyright  law. 

Judge  Shepard  held  that  the  records  did  not  "copy" 
the  sheet  music.  "It  is  not  pretended  that  the 
marks  upon  the  wax  cylinders  can  be  made  out  by 
the  eye,  or  that  they  can  be  utilized  in  any  other  way 
than  as  parts  of  the  mechanism  of  the  phonograph. 
Conveying  no  meaning,  then,  to  the  eye  of  even  an 
expert  musician,  and  wholly  incapable  of  use  save  in 
and  as  part  of  a  machine  specially  adapted  to  make 
them  give  up  the  records  which  they  contain,  these 
prepared  wax  cylinders  can  neither  constitute  the  copy- 
righted sheets  of  music  nor  serve  any  purpose  which 
is  within  their  scope.  In  these  respects  there  would 
seem  to  be  no  substantial  difference  between  them  and 
the  metal  cylinder  of  the  old  and  familiar  music  box ; 
and  this,  though  in  use  at  and  before  the  passage  of 
the  copyright  act,  has  never  been  regarded  as  infring- 
ing upon  the  copyrights  of  authors  and  publishers." 

Decree  dismissing  hill  affirmed. 

Acts  not  an  Infringement. 

Kipling  v.  G.  P.  Putnam's  Sons. 

Circuit  Court  of  Appeals,  Second  Circuit,  January,  1903. 

lao  Fed.  R.  631. 

An  action  for  infringement  and  unfair  competition. 
The  defendants  purchased  in  1899  from  complainant's 
authorized  publishers  two  himdred  copies  of  the  tm- 
boimd  sheets  of  his  works.      Half  of  these  were  for 


134        Decisions  of  American  Courts 

themselves  and  half  for  E.  P.  Button  &  Company. 
Their  portion  of  these  sheets  was  boimd  up  by  defen- 
dants in  a  twelve  volume  edition,  to  which  were  added 
three  other  volumes  consisting  of  uncopyrighted  works, 
sheets  purchased  from  authorized  publishers,  and 
original  matter.  The  books  were  botmd  imiformly, 
some  sets  in  leather  and  some  in  buckram.  Fifteen  of 
the  sets  so  botmd  had  stamped  on  one  cover  an  ele- 
phant's head.  This  was  called  the  '*  Brushwood" 
edition. 

The  complainant  had  previously  published  through 
the  Scribners  the  "Outward  Bound"  edition  in  twelve 
volimies.  These  books  were  larger,  wider,  and  thicker 
than  the  "Brushwood"  edition;  but  they  also  carried 
a  gilt  elephant's  head.  There  was  no  evidence  of  any- 
thing constituting  notice  to  defendants  that  this  head 
was  a  trade  mark.  Other  editions  had  been  published 
without  it.  The  complainant  sued  on  the  grounds 
that:  I.  The  Brushwood  edition  infringed  his  copy- 
right; 2.  The  use  of  the  elephant's  head  infringed  his 
trade-mark;  3.  The  whole  edition  was  in  imfair  com- 
petition with  the  "Outward  Bound"  edition.  At  the 
trial  the  Court  directed  a  verdict  for  the  defendant, 
and  the  judgment  was  affirmed  in  the  Circuit  Court  of 
Appeals. 

Coxe,  Circuit  Judge,  said  on  these  points:  i. 
"There  is  no  matter  published  in  the  *  Brushwood' 
edition  secured  to  the  plaintiff  under  the  copyright  law 
of  the  United  States,  which  was  not  purchased  by  the 
defendants  of  publishers  duly  authorized  by  the  plan- 
tiff  to  sell.  .  .  .  Upon  what  theory,  then,  have 
the  plaintiff's  copyrights  been  infringed?  Each  one  of 
them,  whether  valid  or  invalid,  was  respected  by  the 
defendants.     That  the  defendants,  having  purchased 


Infringements  and  Unfair  Use        135 

ttnbound  copyrighted  volumes,  were  at  liberty,  so  far 
as  the  copyright  statute  is  concerned,  to  bind  and  resell 
them,  is  a  well-recognized  principle  of  law.  It  is  of  no 
moment  that  each  volimie  of  the  *  Outward  Bound* 
edition  authorized  by  the  plaintiff  and  published  by 
Charles  Scribner's  Sons,  in  1897-98,  was  copyrighted. 
This  new  copyright  protected  only  what  was  original  in 
the  'Outward  Bound*  edition.  It  did  not  operate  to 
extend  or  enlarge  prior  copyrights  or  remove  from  the 
public  domain  the  author's  works  which,  by  his  own 
act,  he  had  dedicated  to  the  public.  .  .  .  We  have 
no  difficulty  in  agreeing  with  the  Circuit  Court  that 
the  plaintiff,  has  failed  utterly  in  establishing  a  cause  of 
action  tmder  the  copyright  law." 

2.  With  regard  to  the  alleged  infringement  of  a  trade- 
mark the  Court  said:  "The  proposition  that  an  author 
can  protect  his  writings  by  a  trade-mark  is  unique  and, 
at  first  blush,  seems  somewhat  startling.  It  is  certainly 
offensive  to  the  aesthetic  and  poetic  taste  to  place  such 
poems  as  the  Recessional  and  The  Last  Chantey 
in  the  same  category  with  pills  and  soap  to  be  dealt  in 
as  so  much  merchandise.  We  do  not  intend  to  decide 
that  such  a  trade-mark  is  sanctioned  by  law,  but  even 
if  it  were,  it  is  manifest  that  the  mark  does  not  lose  its 
characteristics  because  used  to  designate  an  unusual 
variety  of  'goods.*  In  other  words,  the  author, 
assuming  that  he  may  have  such  protection,  must 
comply  with  the  law  if  he  would  have  a  valid  trade- 
mark." The  elephant's  head  had  never  been  registered 
as  a  trade-mark;  and  in  the  only  case  (aside  from  the 
**  Outward  Boimd"  edition)  in  which  it  had  been  used 
on  plaintiff's  books  it  was  surrounded  by  the  name  of 
the  publishers  so  as  to  indicate  it  was  their  mark  and 
not  his.     The  Court  held,  therefore,  that  there  was  no 


136        Decisions  of  American  Courts 

proof  of  any  common-law  trade-mark ;  and  it  was  con- 
ceded that  there  was  no  registered  mark. 

3.  In  reference  to  the  charge  of  unfair  competition 
it  was  held  that  an  action  on  this  theory  is  based  on 
fraud,  which  must  be  proved.  No  fraud  was  hero 
shown.  There  was  no  chance  of  the  "Brushwood" 
and  the  **  Outward  Bound"  editions  being  confused. 
They  differed  in  size,  shape,  binding,  color,  and  typog- 
raphy. The  defendants  did  not  attempt  to  make 
the  public  believe  their  edition  was  the  same  as  the 
''Outward  Boimd,"  but  that  it  was  more  complete 
than  that  or  any  other  edition.  There  was  no  proof 
of  tinf  air  dealing  or  of  direct  damage.* 

Judgment  affirmed. 

Imitations  when  not  Infringements. 

Bloom  v.  Nixon. 

Circuit  Court,  Eastern  District  of  Pennsylvania,  November,  1903. 
125  Fed.  R.  977. 

The  complainant,  the  proprietor  of  the  copyright  of 
a  song  entitled  Sammy  ^  was  the  manager  of  a  comic 
opera  in  which  Miss  Lotta  Faust  sang  this  song.  Miss 
Fay  Templeton,  playing  in  The  Runaways,  gave  an 
imitation  of  Miss  Faust  singing  the  Sammy  song,  and 
suit  was  brought  to  restrain  her  on  the  ground  that 
she  was  violating  the  copyright.  The  complainant 
relied  on  §4966  of  the  Revised  Statutes:  **Any  per- 

*  For  other  cases  where  it  was  held  that  there  was  no  infringe- 
ment, see  Griggs  v.  Perrin,  49  Fed.  R.  15;  Harper  v.  Ranous,  67 
Fed.  R.  904;  Corbett  v.  Ptirdy,  80  Fed.  R,  901 ;  Barnes  v.  Miner,  12  c 
Fed.  R.  480;  Howell  v.  Miller,  91  Fed.  R.  129;  Champney  v.  Haag, 
121  Fed.  R.  944;  Stem  v.  Rosey,  17  App.  D.  C.  562;  Bumell  v, 
Chown,  69  Fed.  R.  993. 


Infringements  and  Unfair  Use        137 

son  publicly  performing  or  representing  any  dra- 
matic or  musical  composition  for  which  a  copyright  has 
been  obtained,  without  the  consent  of  the  proprietor 
.  .  .  shall  be  liable  for  damages  therefor,  etc."  On 
a  motion  for  a  preliminary  injimction  Judge  McPherson 
held  that  the  question  at  issue  was  whether  the  song 
was  being  performed  or  represented.  He  decided  that 
it  was  not,  saying  in  his  opinion : 

"What  is  being  represented  are  the  peculiar  actions, 
gestures,  and  tones  of  Miss  Faust,  and  these  were  not 
copyrighted  by  the  complainant  Bloom,  and  could  not 
be,  since  they  were  the  subsequent  device  of  other 
minds.  It  is  the  personality  imitated  that  is  the  sub- 
ject of  Miss  Templeton's  act,  modified,  of  course,  by  her 
own  individuality,  and  it  seems  to  me  that  the  chorus 
of  the  song  is  a  mere  vehicle  for  carrying  the  imitation 
along. .  Surely  a  parody  would  not  infringe  the  copy- 
right of  the  work  parodied  merely  because  a  few  lines 
of  the  original  might  be  textually  reproduced.  No 
doubt  the  good  faith  of  such  mimicry  is  an  essential 
element,  and  if  it  appeared  that  the  imitation  was 
a  mere  attempt  to  evade  the  owners'  copyright,  the 
singer  would  properly  be  prohibited  from  doing  in  a 
roundabout  way  what  could  not  be  done  directly. 
But  where,  as  here,  it  is  clearly  established  that  the 
imitation  is  in  good  faith,  and  that  the  repetition  of  the 
chorus  is  an  incident  that  is  due  solely  to  the  fact  that 
the  stage  business  and  the  characteristics  imitated  are 
inseparably  connected  with  the  particular  words  and 
music,  I  do  not  believe  that  the  performance  is  for- 
bidden either  by  the  letter  or  the  spirit  of  the  Act  of 
1897.  The  owner  of  the  copyright  is  entitled  (upon 
the  assimiption  heretofore  stated)  to  be  protected  from 
unauthorized  public  performance  or  representation  of 


138        Decisions  of  American  Courts 

the  song,  in  order  that  whoever  might  desire  to  hear 
Sammy  sung  in  public  would  be  obliged  to  attend  a 
performance  of  the  Wizard  of  Oz;  and,  as  it  seems  to 
me,  he  still  has  that  protection.  The  song  is  sung  pub- 
licly only  in  that  extravaganza.  Fay  Templet  on  does 
not  sing  it;  she  merely  imitates  the  singer,  and  the 
interest  in  her  own  performance  is  due,  not  to  the  song, 
but  to  the  degree  of  excellence  of  the  imitation.  This 
is  a  distinct  and  different  variety  of  the  histrionic  art 
from  the  singing  of  songs,  dramatic  or  otherwise,  and  I 
do  not  think  that  the  example  now  before  the  Court 
has  in  any  way  interf erred  with  the  legal  rights  of  the 
complainants." 
Injunction  denied. 

Infringement  of  Stage  Rights. 

Harper  v.  Ganthony. 

Circuit  Court,  Southern  District  of  New  York,  April,  1895. 

{Not  reported.) 

The  complainant  Harper  acquired  from  Du  Maurier 
the  right  to  copyright  in  the  United  States  the  latter' s 
story  of  Trilby.  Copyright  was  duly  obtained  on  the 
book,  and  thereafter  the  dramatic  rights  were  assigned 
to  another  of  the  complainants,  Palmer,  who  caused 
the  novel  to  be  dramatized  and  produced  upon  the 
stage.  The  defendant,  Miss  Ganthony,  constructed  a 
distinct  and  independent  dramatization  of  the  story 
without  the  consent  of  the  proprietors  of  the  copyright 
or  of  the  stage  right ;  and  this  she  proceeded  to  perform 
at  the  Eden  Mus6e,  in  New  York.  The  representation 
consisted  of  a  series  of  monologues  in  costume,  in 
which  Miss  Ganthony  depicted  the  plot  of  the  story,  as 
well   as  the  more  important   characters   and   scenes 


Infringements  and  Unfair  Use        139 

therein.     On  a  motion  for  a  preliminary  injimction 
Judge  Lacombe  held  that  the  acts  of  the  defendant 
constituted  a  public  performance  of  a  dramatic  com- 
position within  the  meaning  of  the  copyright  law. 
Preliminary  injunction  granted. 

Unfair  Use.    Scope  of  Injunction. 

West  Publishing  Company  v.  The  Lawyers' 
Publishing  Company. 

Circuit  Court   of  Appeals,  Second  Circuit,   April,   1897,  reversing 
Circmt  Court,  Northern  District  of  New  York,  64  Fed.  R.  360. 

79  Fed.  R.  756. 

The  West  Company  pubUshed  a  system  of  law  re- 
ports in  connection  with  which  they  printed  monthly 
digests.  Both  were  copyrighted.  The  defendant  pub- 
lished a  collection  of  selected  cases  and  a  digest  of 
cases  in  the  United  States.  The  complainant  alleged 
that  defendant  made  imfair  use  of  its  publication  and 
appropriated  the  labors  of  complainant's  editors. 
Much  of  the  defendant's  digest  was  made  from  publi- 
cations not  copyrighted,  viz. :  United  States  Supreme 
Court,  Canadian,  and  other  reports.  The  Circuit 
Court  fotmd  that  there  were  303  proved  instances  of 
piracy  and  granted  an  injimction  as  to  those  particular 
paragraphs  held  to  infringe. 

Judge  Coxe  said :  '*  Where  the  pirated  portions  can  be 
separated  from  the  portions  not  subject  to  criticism  the 
injimction  should  not  go  against  the  entire  work,  but 
against  the  infringing  portions.  .  .  .  The  defen- 
dants had  a  right  to  copy  the  opinion,  decisions,  and 
syllabi  prepared  by  the  court  from  the  complainant's 
publications  or  from  any  other  source,  and  use  them 
precisely  as    any  other    matter  which  is  free  to  the 


I40        Decisions  of  American  Courts 

public.  The  defendant  could  lawfully  prepare  notes, 
abstracts,  and  paragraphs  from  these  free  sources  of 
information,  collect  them,  and  publish  them  in  a  digest 
of  its  own.  In  doing  this  editors  had  no  right  to  avail 
themselves  of  the  complainant's  original  work.  They 
were  forbidden  not  only  from  copying  the  work  of  the 
complainant's  editors,  but  also  from  using  that  work 
in  any  way  to  give  them  suggestions  or  to  lighten  their 
labors.  ...  In  case  of  an  index  or  digest  the  com- 
piler is  not  guilty  of  bad  faith  in  using  the  book  he  is 
digesting.  He  must  use  the  book.  Not  only  should  a 
digest  tell  in  brief  what  was  been  decided,  but  it  should 
also  inform  the  reader  where  the  decision  is  to  be  foimd 
in  full.  This  of  necessity  requires  an  examination  of 
the  reports.  A  digest  prepared  only  from  the  manu- 
scripts of  the  judges  would  be  a  ludicrous  excrescence 
which  would  not  be  harbored  in  any  library."  *  The 
Court  held,  however,  that  in  303  instances  at  least  piracy 
was  proved,  and  therefore  an  injunction  should  be 
granted ;  but  that  as  a  digest,  like  a  directory  or  index, 
is  composed  of  separate  and  distinct  paragraphs,  each 
of  which  can  be  removed  without  affecting  the  re- 
mainder, the  injimction  should  not  decree  the  suppres- 
sion of  the  entire  work. 

On  appeal  to  the  Circuit  Court  of  Appeals  (Judge 
Lacombe  writing  the  opinion),  it  was  held  that  the 
decree  of  the  Circuit  Court  should  be  reversed  on  the 
ground  that  the  injimction  was  too  limited  in  its  scope. 
The  rule  as  to  what  is  entitled  to  copyright  was  ap- 
proved as  stated  by  the  Circuit  Court.  Judge  Lacombe 
said:  ''The  main  criticism  advanced  upon  this  appeal 
is  that  the  court  erred  in  treating  the  case  as  if  com- 

*  See  Howell  v.  Miller,  91  Fed.  R.  129;  Mead  v.  West  Co.,  80  Fed. 
R.  380;  Ed.  Thompson  Co.  v.  Am.  L.  B'k  Co.,  122  Fed.  R.  922. 


Infringements  and  Unfair  Use        141 

plainant  had  been  unable  or  unwilling  to  prove  more 
than  303  instances  of  piracy.  It  is  apparent  that  the 
Circuit  Court  and  the  master  have  treated  each  separate 
'point'  in  a  syllabus  as  the  subject  of  a  separate  copy- 
right, and  have  acted  upon  the  principle  that  no  alleged 
infringing  paragraph  could  be  shown  to  be  pirated 
tmless  it  showed  upon  its  face,  independently  of  all 
other  proof,  language  tmmistakably  borrowed  from 
a  copyrighted  paragraph.  To  such  an  extent  has  this 
segregation  been  carried,  that  there  are  several  instances 
where  the  master  has  reported  that  there  was  no  in- 
fringement of  one  paragraph  in  the  head-note  of  a  par- 
ticular case,  although  he  has  found  infringements  of 
the  other  paragraphs  of  the  same  head-note;  and  the 
Circuit  Court  has  so  held.  .  .  .  It  is  thought,  on  the 
contrary,  that  in  such  a  case,  where  imfair  use  of  any 
part  of  a  syllabus  is  proved,  the  burden  would  be  upon 
the  unfair  user  to  show,  if  he  can,  that  nevertheless 
there  were  parts  of  the  same  syllabus  that  he  did  not  so 
use.  As  a  result  of  this  method  of  examination  there 
seems  to  have  been  no  attempt  made  to  deal  with  the 
question  presented  by  the  pleadings,  namely,  whether, 
taking  each  copyrighted  work  as  a  whole,  and  consider- 
ing the  evidence,  as  a  whole,  the  preponderance  of  proof 
shows  that,  in  preparing  defendant's  publication,  its 
editors,  or  any  of  them,  have  substantially  made  an 
unfair  use  of  such  copyrighted  work."  Upon  an  ex- 
amination of  the  evidence  it  was  held  that  there  was 
an  unfair  use  of  copyrighted  material  and  that  com- 
plainant was  entitled  to  an  injunction  against  defen- 
dant's digest,  except  so  much  as  related  to  English, 
Canadian,  and  United  States  Supreme  Court  reports 
and  other  imcopyrighted  reports. 
Decree  reversed. 


142        Decisions  of  American  Courts 

Unfair  Use.    Citations  in  Text-Books. 

Mead  v.  West  Publishing  Company. 

Circiiit  Court,  District  Minnesota,  May,  1896. 
80  Fed.  R.  380. 

Complainant  and  defendant  each  published  an 
edition  of  Stephen  on  Evidence,  with  notes  and 
citations.  Defendant's  editor  clipped  part  of  the  text 
of  Stephen  from  complainant's  book ;  but  did  not  copy 
his  notes.  He  admitted  that  he  got  certain  ideas  as  to 
additional  subjects  for  notes  from  complainant's  notes, 
but  he  did  not  copy  or  appropriate  such  notes.  It 
appeared  that  there  were  certain  errors  in  citations 
common  to  both  books.  The  complainant  argued 
that  this  fact  established  the  infringement. 

Lochren,  District  Judge,  held  that  the  use  made  of 
the  complainant's  book  by  defendant  was  lawful.  The 
text  of  Stephen  was  not  protected  and  defendant  might 
extract  clippings  from  it  wherever  printed.  Putting 
the  text  in  his  copyrighted  book  did  not  give  com- 
plainant any  exclusive  right  to  it.  Defendant  might 
copy  it  from  such  book  or  any  other.  As  to  the  notes, 
it  was  held  that  there  had  been  no  unlawful  appro- 
priation. The  defendant's  notes  were  no  more  like 
complainant's  than  a  set  of  notes  treating  on  the  same 
point  must  inevitably  be.  The  terms  were  like,  but 
there  was  no  evidence  from  the  form  or  the  expression 
of  any  piracy.  The  fact  that  defendant  acquired  cer- 
tain ideas  from  complainant's  book,  which  he  incor- 
porated into  additional  notes,  is  immaterial.  The 
new  notes  were  his  own  original  work.  The  few  errors 
in  citations  were  immaterial,*  since  it  appeared  that 

*  See  also  for  unfair  use :  Chicago  Dollar  Directory  Company  v. 
Chicago  Directory  Company,  66  Fed.  R.  977;    where  it  appeared 


Infringements  and  Unfair  Use        143 

there  were  many  new  citations  and  that  the  work  on 
the  whole  showed  that  it  was  the  resiilt  of  original 
research. 

Injunction  denied. 

Unfair  Use  of  Scientific  Work.* 

SiMMs  V.  Stanton. 

Circuit  Court,  Northern  District  of  California,  June,  1896. 
75  Fed.  R.  6. 

Complainant  copyrighted  two  books  on  physiognomy. 
These  books  the  defendant  used  in  writing  a  book  on  the 
same  subject.  The  complainant  contended  that  defen- 
dant had  made  an  unfair  use  of  his  works  and  infringed 
the  copyrights  and  demanded  an  injimction. 

Judge  Morrow  held  that  while  a  person  might  make 
use  of  a  reference  work  (which  defendant  admitted 
she  did)  it  was  not  lawful  to  appropriate  it.  Copying 
is  not  confined  to  literal  repetition.  The  law  pro- 
hibits the  use  of  any  copyrighted  book,  animo  furandi, 
with  intent  to  save  oneself  labor.  But  the  defendant 
was  privileged  to  make  a  "fair  use"  of  complainant's 
books.  She  had  the  right  to  refer  to  them,  and  to  use 
the  same  system  used  by  them,  and  to  treat  of  the  same 
subjects.  A  copyright  obtained  by  an  author  does  not 
protect  him  in  the  use  of  material  already  published  by 

that  the  defendant's  directory  contained  sixty-seven  errors  which 
had  occurred  in  the  complainant's  directory,  it  was  held  sufficient 
evidence  of  unfair  use. 

See  also  Williams  v.  Smythe,  no  Fed.  R.  961 ;  Chicago  Directory  v. 
United  States  Directory,  122  Fed.  R.  189;  Trow  Directory  Com- 
pany V.  United  States  Directory  Company,  122  Fed.  R.  191 ;  Colliery 
Co.  V.  Correspondence  Schools,  94  Fed.  R.  152. 

*  See  also  Lillard  v.  Sun  Pub.  Co.,  87  Fed.  R.  213,  on  use  of  prior 
scientific  works. 


144        Decisions  of  American  Courts 

an  earlier  author.  Having  a  right  to  use  the  system, 
it  was  natural  that  the  description  should  be  similar. 
Had  complainant  been  the  first  to  use  the  system,  he 
would  have  been  protected.  But  the  description  was 
not  so  similar  as  to  indicate  piracy.  Both  parties  were 
writing  on  the  same  subject.  Both  had  studied  it  for 
years.  It  was  natural,  therefore,  that  the  descriptions 
and  definitions  in  their  books  should  be  similar.  But 
the  complainant  on  whom  the  burden  of  proof  lay 
failed  to  show  substantial  piracy. 
Bill  dismissed. 

Infringement.    Unfair  Use, 

LiLLARD  V.  Sun  Printing  and  Publishing  Co. 

Circuit  Cotirt,  Southern  District  of  New  York,  May,  1898. 
87  Fed.  R.  ai3. 

An  action  was  brought  by  the  complainant  to  enjoin 
the  Sun  from  publishing  an  article  alleged  to  be  pirated. 
The  complainant  was  the  proprietor  of  a  periodical 
called  Popular  Science^  and  in  the  number  for  January, 
1897,  he  published  a  copyrighted  article,  illustrated, 
on  an  extinct  animal,  the  ''brontosaurus."  The  de- 
fendant subsequently  printed  an  article  on  the  same 
animal  and  illustrated  it  with  a  cut  closely  resembling 
that  in  the  complainant's  magazine.  There  was  a  de- 
murrer to  the  bill,  and  Lacombe,  Circuit  Judge,  held 
that  the  article  in  the  Sun  was  within  what  was  a  fair 
use  of  the  copyrighted  description,  especially  since 
such  description  was  presumably  not  original  with  the 
complainant.  The  animal  was  one  which  no  human 
being  ever  saw,  and  whose  anatomy  was  worked  out 
by  geologists.     The  description  of  it  was  contained  in 


Infringements  and  Unfair  Use        145 

many  works  in  this  country  and  abroad.     But  as  to 
the  cut  used  to  illustrate  the  newspaper  article,  it  was 
held  that  was  too  close  an  imitation  of  complainant's 
illustration  to  be  a  fair  use.* 
Demurrer  overruled  as  to  cut,  ■ 

Use  of  Scientific  Worlds. 

Colliery  Engineer  Co.  v.  Ewald. 

Circuit  Court,  Southern  District  of  New  York,  August,  1903. 
126  Fed.  R.  843. 

On  a  motion  to  pimish  for  contempt  in  violating  an 
injunction,  complainant  showed  that  it  had  compiled 
a  series  of  text-books  by  its  employees.  These  books 
were  taken  chiefly  from  earlier  works,  with  some  little 
new  matter  added  in  the  shape  of  illustrations  and  ex- 
amples. This  was  copied  bodily  by  defendant  without 
independent  research.  Suit  was  brought  and  an  in- 
jimction  obtained.  (See  Colliery  Eng.  Co.  v.  United 
Cor.  Schools,  94  Fed.  R.  152.)  The  defendant  took 
the  infringing  books  and  compared  them  with  the 
authorities  from  which  the  complainant's  original 
book  was  compiled.  Where  the  text  was  foimd  in  the 
earlier  books  it  was  marked  for  retention ;  all  else  was 
struck  out,  and  what  was  left  was  the  publication 
alleged  to  violate  the  injimction.  Judge  Lacombe 
held  that  this  was  not  a  violation.  The  defendant  was 
entitled  to  make  such  use  of  complainant's  work  under 
the  rule  in  Edw.  Thompson  Co.  v.  American  Law  Bk. 
Co.,  122  Fed.  R.  922. 

Motion  denied. 

♦It  was  also  held  that  an  allegation  that  the  complainant  was 
the  proprietor  of  a  copyrighted  magazine  in  which  the  article  ap- 
peared was  sufficient,  and  the  bill  need  not  aver  that  he  was  the 
author,  inventor,  designer,  or  proprietor  of  the  cut  or  article. 


14^        Decisions  of  American  Courts 

Unfair  Use.    City  Directories. 

Trow  Directory  Company  v.  Boyd. 

Circuit  Court,  Southern  District  of  New  York,  October,  1899. 
97  Fed.  R.  586. 

On  motion  for  preliminary  injunction  restraining 
publication  of  a  directory  alleged  to  infringe  complain- 
ant's copyright,  Lacombe,  Circuit  Judge,  held  that  it 
appeared  that  defendant's  agents  had  copied  from  the 
Trow  Directory  rather  than  looked  up  the  facts  inde- 
pendently; and  a  failure  to  produce  the  canvasser  in 
each  case  of  an  alleged  infringement  made  the  pre- 
sumption against  the  defendant.  But  as  an  injunc- 
tion might  work  irreparable  injury  to  the  defendant, 
it  was  granted  only  in  case  defendant  should  fail  to  file 
a  bond  for  $10,000  to  pay  whatever  damages  com- 
plainant might  recover ;  together  with  a  sworn  state- 
ment of  sa'es  each  month. 

Unfair  Use  of  Unpublished  Manuscript. 

Maxwell  v.  Goodwin. 

Circmt  Court,  Northern  District  of  Illinois,  April,  1899. 
93  Fed.  R.  665. 
Complainant  was  the  author  of  a  play  entitled  Con- 
gress, which  was  never  copyrighted  or  published.  He 
presented  it  to  defendant  in  the  spring  of  1895  and  it 
was  rejected.  In  the  following  fall,  defendant  brought 
out  a  play  called  Ambition,  which,  like  the  former 
play,  dealt  with  scenes  in  Washington.  The  com- 
plainant brought  an  action  for  damages,  alleging  a 
violation  of  his  common-law  stage-right ;  and  the  jury 
gave  him  a  verdict.     On  motion  to  set  aside  the  verdict, 


Infringements  and  Unfair  Use        147 

defendant  contended  that  there  was  no  stage  right 
tinder  the  common  law ;  and  that  there  was  no  inherent 
property  right  in  ideas  or  creations  of  the  imagination 
apart  from  the  manuscript  in  which  they  are  contained 
or  the  language  in  which  they  are  clothed. 

Seaman,  Circuit  Judge,  held  that  neither  of  these 
contentions  was  correct.*  But  the  case  was  decided 
on  another  ground,  that  the  evidence  did  not  support 
the  verdict.  The  Court  held  that  neither  internal  nor 
external  evidence  indicated  any  copying.  The  plot, 
scenes,  dialogue,  characters,  and  situations  of  the  two 
plays  were  not  at  all  alike.  The  only  resemblance  was 
that  both  related  to  Congressional  life.  The  only  fact 
of  external  evidence  that  supported  the  verdict  was 
that  defendant  had  had  complainant's  manuscript  in 
his  possession  for  some  time,  and  might  have  read  and 
copied  it.  The  defendant  testified  he  never  had  read  it 
and  that  the  alleged  pirated  play  was  in  fact  written  by 
one  Carleton  two  years  before  complainant's  play. 
This  was  corroborated  by  the  testimony  of  Carleton 
and  Charles  Frohman,  to  whom  the  play  had  been  read 
before  the  complainant's  play  was  written. 

Verdict  set  aside  and  new  trial  granted. 

Unfair  Use  of  Law  Encyclopaedia, 

Edward  Thompson  Company  v.  American  Law 
Book  Company. 

Circuit  Court  of  Appeals,  Second  Circuit,  July,  1903. 
laa  Fed.  R.  933. 

In  an  action  for  infringement  of  a  copyrighted  en- 
cyclopaedia, defendant  showed  that  much  of  the  material 

*  See  French  v.  Kreling,  63  Fed.  R.  6ai;  N.  J.  State  Den.  Soc.  v, 
Denta.  Co.,  57  N.  J.  Eq.  593. 


14^        Decisions  of  American  Courts 

taken  by  it  from  complainant's  book  had  been  pirated 
by  complainant  from  other  copyrighted  books.  The 
defendant  took  lists  of  all  the  cases  bearing  upon  a 
given  subject,  including  cases  fotmd  in  complainant's 
books.  These  were  put  in  the  hands  of  an  editor,  who 
examined  them,  and  if  the  cases  were  applicable,  cited 
them  in  support  of  his  article.  There  was  no  claim 
that  a  word  of  the  text  was  copied.  The  only  use  of 
the  lists  of  cases  was  to  guide  the  editor  to  the  reports. 
The  lists  themselves  were  not  printed  by  defendant. 
It  was  held  that  this  was  no  infringement.*  Every 
author  of  a  law  book  may  take  a  list  of  authorities  cited 
in  a  previous  work  and  make  an  independent  examina- 
tion of  them.  It  was  also  held  that  the  complainant 
was  not  entitled  to  relief  because  it  appeared  that  in 
compiling  its  book,  it  had  pursued  a  similar  method  in 
its  use  of  earlier  works,  and  if  the  defendant  was  guilty 
of  piracy,  so  was  the  complainant ;  and  equity  will  not 
protect  a  pirate  from  infringements  of  his  piratical  work. 
The  order  of  the  Circuit  Court  granting  a  temporary 
injunction  reversed. 

Unfair  Competition.     Reprinting 
Dictionary.! 

Merriam  v.  Famous  Shoe  Company. 

Circuit  Court,  Eastern  District  of  Missouri,  September,  1891. 

47  Fed.  R.  411. 

Bill  to  restrain  a  publication  of  Webster's  Dictionary. 
Complainant's  were  publishers  of  Webster's  Dictionary. 

♦The  decision  of  the  Circuit  Court  here  reversed  is  found  in  121 
Fed,  R.  907. 

t  As  to  unfair  competition,  see  also  Kipling  v.  Putnam,  120  Fed.R. 
63 1 ;  National  Telegraphic  News  Company  v.  The  Western  Union 
Telegraph  Company,  119  Fed.  R.  294. 


Infringements  and  Unfair  Use        149 

The  edition  of  1847  was  copyrighted.  This  copyright 
expired  in  1889.  The  edition  being  published  at  the 
time  of  this  suit  was  that  of  1864,  a  revision  copyrighted 
in  that  year.  The  defendant  made  a  reprint  of  the 
edition  of  1847,  but  omitted  all  features  thereof  which 
distinguished  it  from  the  edition  of  1864. 

Thayer,  District  Judge,  held  that  while  the  defend- 
ant had  a  perfect  right  to  reprint  the  edition  of  1847 
as  it  had  become  public  property  by  the  expiration  of 
the  copyright,  and  while  he  could  call  his  book  "  Web- 
ster's Dictionary,"  yet  equity  would  restrain  him  from 
publishing  a  reprint  of  the  edition  which  cut  out  its 
distinguishing  characteristics  so  as  to  deceive  the 
public  into  believing  it  was  the  revised  edition  of  1864. 
Wrongs  of  this  kind  are  subjects  of  equitable  relief. 
It  was  an  attempt  by  one  person  to  confuse  the  public 
mind  and  make  it  beHeve  that  his  goods  were  the  goods 
of  another. 

Injunction  granted.^ 

Unfair  Competition.    Use  of  Similar  Titles. 

Harper  v.  Holman. 

Circuit  Court,  Eastern  District  of  Pennsylvania,  December,  1897. 

84  Fed.  R.  334. 

Lare  v.  Harper. 

Circuit  Court  of  Appeals,  Third  Circuit,  March,  1898. 
86  Fed.  R.  481. 

Complainants  (the  Harpers)  brought  a  bill  in  equity 
to  enjoin  the  defendants  from  publishing  a  book  alleged 

*See  to  the  same  effect  Merriam  v  Holloway  Publishing  Company, 
43  Fed.  R.  450,  and  Merriam  v,  Texas  Siftings  Company,  49  Fed.  R. 
411. 


I50         Decisions  of  American  Courts 

to  infringe  a  copyright  and  from  using  on  any  book 
the  title  The  Fram  Expedition :  Nansen  in  the  Frozen 
World.  The  complainants'  book  was  entitled  Far- 
thest North.  Nansen.  The  defendants'  book  bore  the 
title  The  Fram  Expedition :  Nansen  in  the  Frozen 
World.  The  complainants  on  the  motion  for  a  tem- 
porary injunction  contended  that  the  book  infringed 
a  copyright,  and  the  title  was  intended  to  deceive  the 
public. 

Dallas,  Circuit  Judge,  held  that  there  was  not 
sufficient  evidence  to  show  that  the  materials  in  the 
book  in  question  were  not  taken  from  sources  law- 
fully open  to  the  defendants ;  and  therefore  no  infringe- 
ment of  copyright  was  shown.  On  the  second  issue  of 
xmfair  competition  he  held  that  there  was  a  manifest 
attempt  on  the  part  of  the  defendants  to  imitate  the 
title  of  the  prior  book;  that  the  title  was  not  aptly 
descriptive  of  defendant's  book,  and  that  it  was  tinfair 
competition. 

On  the  appeal  the  Circuit  Court  of  Appeals  reversed 
the  Circuit  Court  on  the  ground  that  there  was  not 
sufficient  proof  of  unfair  competition.  The  defendants 
had  determined  to  publish  a  book  on  the  Fram  Ex- 
pedition months  before  Dr.  Nansen  began  writing  his 
account.  Nor  did  it  appear  that  the  two  books  were 
so  similar  as  to  cause  confusion.  The  complainants' 
book  was  in  two  volumes  bound  in  brown  cloth  and 
entitled  Farthest  North.  Nansen.  It  sold  for  $io. 
The  defendant's  book  was  in  one  volume,  bound  in  blue 
and  entitled  The  Fram  Expedition  :  Nansen  in  the 
Frozen  World.  Including  Earlier  Arctic  Explorations. 
It  sold  for  $2. 

Bradford,  District  Judge,  writing  the  opinion,  said: 
**  It  is  evident  that  the  two  works  are  calculated  respec- 


Infringements  and  Unfair  Use         151 

tively  to  meet  the  demands  of  different  classes  of  pur- 
chasers. There  is  nothing  deceptive  in  the  cover,  out- 
side title,  or  title-page  of  the  defendants'  book.  Those 
titles  taken  in  conjunction  are  fairly  descriptive  of  the 
subject-matter  of  the  voltmie.  They  radically  differ 
from  the  outside  title  and  title-page  of  the  complain- 
ants' book.  Comparing  the  two  works,  we  are  imable 
to  perceive  that  any  ordinary  customer  of  such  books 
possessing  common  intelligence  should,  in  the  absence 
of  actual  fraud  practised  upon  him,  mistake  the  one  for 
the  other,  without  gross  carelessness  on  his  part." 
Order  for  preliminary  injunction  reversed. 

Unfair  Competition.    Stage  Rights. 

Frohman  v.  Weber. 

New  York  Supreme  Court,  November,  1903. 
{Not  reported.) 

Charles  Frohman,  the  proprietor  of  the  stage  rights 
in  the  play  Sherlock  Holmes,  brought  suit  to  enjoin 
the  defendant  from  presenting  The  Sign  of  the  Four, 
in  which  the  leading  character  is  Sherlock  Holmes.  On 
motion  for  a  preliminary  injimction  pending  suit,  the 
plaintiff  urged  that  the  advertising  of  Sherlock  Hobnes 
as  the  central  figure  of  the  rival  play  was  unfair 
competition  with  his  play  and  tended  to  mislead  the 
public  who  might  go  to  the  Sign  of  the  Four  expect- 
ing to  see  the  prominent  actor  who  was  playing  the 
title  r61e  in  the  plaintiff's  drama,  as  well  as  to  see  that 
drama.  The  defendant  responded  that  his  play  was  a 
dramatization  of  an  imcopyrighted  story,  which,  by 
publication,  had  become  dedicated  to  the  public,  and  as 


152         Decisions  of  American  Courts 

Sherlock  Holmes  was  the  leading  character  of  the 
story,  he  could  lawfully  be  made  leading  character  in 
the  play.  Moreover,  the  title  of  the  defendant's  play 
bore  no  resemblance  to  that  of  the  plaintiff.  The  defen- 
dant did  nothing  to  confuse  the  public  as  to  the  two 
plays  or  the  actors  who  appeared  in  them.  Justice 
Clarke  held  that  the  plaintiff  had  not  made  out  a  case 
and  denied  the  injimction. 

The  case  has  not  (January,  1904)  reached  a  final 
decision. 

Unfair  Competition.     Cheap  Edition 
Rebound. 

DoDD  V   Smith. 

Supreme  Court  of  Pennsylvania,  October,  1891. 

144  Pa.  St.  340. 

The  plaintiffs,  Dodd,  Mead  &  Company,  held  the 
copyright  on  E.  P.  Roe's  novels  and  published  two 
editions,  a  cheap  paper-covered  one,  selling  at  fifty  cents 
a  volimie,  and  a  more  elaborate  cloth  boimd  edition 
at  $1.50  a  voltmie.  The  defendant  bought  a  large  lot 
of  the  cheap  edition,  reboimd  the  books  in  cloth  so  as  to 
resemble  the  better  edition  and  sold  them  at  sixty 
cents  a  volume.  This  brought  the  inferior  books  into 
competition  with  the  better  edition.  The  plaintiffs 
sought  an  injunction  restraining  the  sale  and  an  ac- 
cotmting  for  profits.  The  Court  of  Common  Pleas  of 
Philadelphia  refused  to  grant  such  relief,  and  on  appeal 
the  Supreme  Court  {per  curiam)  affirmed  the  decree 
without  opinion.* 

*  See  Doan  v.  Am.  Bk.  Co.,  105  Fed.  R.  772. 


Infringements  and  Unfair  Use        153 

Unfair  Competition.    Trade-Mark. 

Social  Register  Association  v.  Howard. 

Circuit  Coiirt,  District  of  New  Jersey,  February,  1894. 
60  Fed.  R.  370, 

The  complainant  was  the  publisher  of  the  Social 
Register,  a  book  containing  the  names,  residences,  etc., 
of  persons  of  a  certain  social  standing  in  New  York  City 
and  Orange,  New  Jersey.  The  defendant  thereafter 
published  a  work  of  similar  character  relating  to  Orange 
and  called  it  Howard's  Social  Register.  The  com- 
plainant served  notice  on  him  to  abandon  the  use  of 
the  phrase  ''Social  Register"  claiming  a  trade-mark. 
The  defendant  disregarding  the  demand,  a  bill  was 
filed  for  an  injunction  to  restrain  him. 

Green,  District  Judge,  held  that  the  injimction 
should  be  granted.  He  said:  "These  words,  'Social 
Register,'  are  clearly  settled  arbitrarily  to  designate 
the  publication  of  the  complainant,  and  cannot  be 
properly  called  descriptive,  in  any  sense.  Hence,  the 
words,  when  chosen,  associated  together,  and  applied 
to  a  list  of  persons  selected  at  will  by  the  compiler,  as  in 
the  case  at  bar,  become  a  trade-mark,  and  are  entitled 
to  protection  as  such.  .  .  .  Now  it  can  scarcely  be 
doubted  that  to  permit  the  defendant  to  use  the  same 
words  to  designate  a  similar  publication  which  is  ad- 
mittedly a  rival,  so  far,  at  least,  as  the  town  of  Orange 
may  be  concerned,  would  be  to  give  the  defendant  the 
advantage  of  the  prestige  which  has  already  crowned 
the  complainant's  publication,  and  while  thus  benefited 
the  defendant,  would,  in  equal  degree,  inflict  damage, 
pecuniary  in  character,  upon  the  complainant. 

"  This  a  court  of  equity  should  refuse  to  do.  It  should 


154        Decisions  of  American  Courts 

be  its  purpose  and  object  in  matters  of  this  sort  to 
prevent  one  from  stealing  away  unfairly  the  business 
and  good  will  which  have  been  acquired  by  another. 
While  fair  competition  promotes  the  public  good  and 
is  to  be  encouraged,  unfair  competition,  based  upon 
imlawful  tactics,  should  be  enjoined."  * 
Injunction  granted. 

Unfair  Competition.    Jurisdiction. 

TiLTON  V.  Jordan. 

Circmt  Court,  District  of  Massachusetts,  October,   1898. 

{Not  reported) 

I 

In  1855  Thomas  Bulfinch  published  a  book  entitled 
The  Age  of  Fable ^  or  Stories  of  Gods  and  Heroes. 
This  was  a  collection  of  stories  which  he  had  previously 
written  for  a  magazine  and  which  had  been  serially 
published  without  copyright.  The  book  of  1855  was 
apparently  copyrighted,  but  the  copyright  was  never 
renewed  and  expired  in  1883.  The  complainant, 
claiming  to  be  the  successor  of  Bulfinch's  rights,  copy- 
righted and  published  in  1891  a  new  edition  edited  by 
Dr.  Edward  Everett  Hale.  In  1898,  the  defendant  put 
on  sale  an  edition  based  on  the  original  text  of  Bulfinch 
to  which  certain  new  matter  had  been  added.  A  bill 
was  filed  to  restrain  this  new  edition.  The  complain- 
ant's case  was  foimded  not  upon  infringement  of  copy- 
right, but  upon  imfair  competition.  He  argued  that 
the  defendant's  book  deceived  the  public  into  the  be- 
lief that  it  was  the  one  edited  by  Dr.  Hale.  The  defen- 
dant contended :  i .  That  the  court  had  no  jurisdiction 
as  the  case  did  not  involve  the  infringement  of  copy- 

*See  also  as  to  trade-mark,  Kipling  v.  Putnam,  120  Fed.  R. 
631. 


Infringements  and  Unfair  Use        155 

right,  but  merely  a  question  of  trade  competition  and 
the  parties  were  citizens  of  the  same  state ;  2.  That  the 
book  was  not  calculated  to  deceive  the  public,  as  it 
differed  in  form,  binding,  illustration,  and  general  ap- 
pearance from  Dr.  Hale's  edition.  There  were  fewer 
pages  and  different  type  in  the  defendant's  book. 

The  Circuit  Court  denied  a  motion  for  a  preliminary 
injtmction,  stating  orally  that  the  complainant  had 
failed  to  sustain  his  contentions. 

Unfair  Competition.    Reports  of  Lectures. 

Drummond  v.  Altemus. 

Circuit  Cotirt,  Eastern  District  of  Pennsylvania,  January,  1894.  < 
60  Fed.  R.  ZZ^' 

Plaintiff  delivered  a  series  of  lectures  in  Boston  in 
1893,  on  which  all  rights  of  publication  were  expressly 
reserved.  Defendant  published  an  unauthorized  edition 
of  a  book  purporting  to  contain  the  lectures  precisely 
as  delivered,  but  which  was  made  up  from  incom- 
plete and  fragmentary  newspaper  reports.  The  plain- 
tiff, a  British  subject,  brought  suit  for  an  injunction, 
alleging  violation  of  his  common-law  right  of  property. 

Dallas,  Circuit  Judge,  held  that  the  subject  of 
copyright  was  not  involved.  The  claim  was  for  pro- 
tection against  having  any  literary  matter  published  as 
the  plaintiff's  which  was  not  actually  his  creation,  and 
to  prevent  fraud  on  purchasers.  That  such  right  exists 
is  well  settled,  although  of  course  an  author  may,  by 
dedication  of  his  works  to  the  public,  abandon  his  title. 
Here  the  defendant  failed  to  prove  such  dedication. 
It  appeared  that  plaintiff  sent  to  a  jotimal  called  The 
British  Weekly,  reports  of  eight  of  the  twelve  lectures. 
But  these  did  not  give  a  full  and  exact  accoxmt  of  those 


15^        Decisions  of  American  Courts 

lectures,  and  no  report  at  all  was  published  of  the  other 
four.  The  defendant's  book  was  based  on  the  account 
in  the  Weekly;  and  had  he  copied  it  literally  the  plain- 
tiff would  have  no  remedy.  But  the  fatal  weakness  of 
his  case  is  that,  under  color  of  editing  the  author's  work, 
he  represented  a  part  as  the  whole,  and  even  as  to  that 
portion  materially  departed  from  the  newspapers'  re- 
ports. While  adopting  the  title  of  the  head-lines  of 
the  reports,  he  altered  their  text  so  as  to  make  it  appear, 
contrary  to  the  tenor  of  the  reports  themselves,  that 
his  book  contained  the  precise  language  of  the  lectures. 

Injunction  granted. 

In  another  suit  brought  by  Potts  &  Company 
against  Altemus  (60  Fed.  R.  339)  a  temporary  injunc- 
tion was  denied  because  it  was  imnecessary,  as  the 
plaintiff  was  Professor  Drummond's  publisher  and  the 
injunction  granted  him  was  sufficient  to  protect  both 
imtil  a  final  hearing. 

Unfair  Competition.    Answers  to  Copy- 
righted Letters. 

LoRiMER  V.  Boston  Herald  Company. 

Massachiisetts  Supreme  Court,  June,  1903. 
(Not  reported) 

Plaintiff  was  the  author  of  Letters  from  a  Self -Made 
Merchant  to  his  Son;  these  were  copyrighted.  De- 
fendant published  a  series  of  letters  entitled  Letters 
from  a  Son  to  his  Self -Made  Father,  written  by  W.  D. 
Quint  and  G.  T.  Richardson,  under  the  pseudonym, 
'Xharles  Eustace  Merriman,"  and  purporting  to  be 
answers  to  the  letters  by  the  plaintiff.  A  bill  was  filed 
alleging  imfair  competition,  the  plaintiff  contending 
that  defendants  had  appropriated  the  results  of  his 
labors  and  that  the  public  was  deceived. 


Infringements  and  Unfair  Use        157 

Judge  Morton  held  that  the  case  did  not  involve 
infringement  of  plaintiff's  copyright,  and  if  it  had  it 
would  have  been  under  the  jurisdiction  of  the  United 
States  courts,  and  not  of  a  state  court.  On  the  issue  of 
unfair  competition,  it  was  held  that  there  was  no  proof 
that  the  letters  were  published  as  the  work  of  Lorimer. 
They  purported  to  be  the  work  of  **  Merriman  "  ;  and  in 
the  advertisements  of  them  there  was  nothing  to  indi- 
cate that  they  were  being  published  as  plaintiff's  work. 
Nor  was  there  any  evidence  that  the  public  was  de- 
ceived into  so  believing.  The  only  evidence  bearing 
on  this  was  that  of  a  newsdealer,  who  was  asked  by  a 
customer  if  the  Letters  from  a  Son  to  his  Self-Made 
Father  were  by  Lorimer,  and  who  responded  that  he 
did  not  know.  The  fact  that  they  were  written  over 
another  name  after  the  first  series  had  made  a  reputa- 
tion under  Lorimer' s  name  would  tend  to  show  that 
they  were  not  held  out  as  written  by  the  same  author. 

Bill  dismissed. 

Unfair  Competion.    School  Books. 

DoAN  V.  American  Book  Company. 

Circuit  Court  of  Appeals,  Seventh  Circuit,  January,  1901. 
105  Fed.  R.  77a. 

The  defendant  purchased  second-hand  school  books 
published  by  the  American  Book  Company.  He  then 
cleaned,  reboimd  and  resold  the  same  at  a  reduced 
price.  The  book  company  brought  suit  for  an  infringe- 
ment of  their  copyright  and  obtained  a  temporary  in- 
junction. 

On  appeal  the  Circuit  Court  of  Appeals  held  that  there 
was  no  infringement  of  a  copyright.  The  sale  of  the 
books  by  the  proprietor  of  the  copyright  carried  with  it 


158         Decisions  of  American  Courts 

the  ordinary  incidents  of  ownership  in  personal  prop- 
erty. The  defendant  had  the  right  to  sell  them  and 
also  to  clean,  repair,  and  rebind  them.  Under  the  claim 
of  imfair  competition  the  Court  held  that  in  order  to 
protect  the  American  Book  Company  from  imlawful 
interference  with  its  trade,  and  the  public  from  decep- 
tion, that  if  the  defendant  rebound  the  books  so  as  to 
resemble  the  original  edition  of  the  plaintiff,  he  must 
stamp  the  covers  conspicuously  with  the  words  to  in- 
dicate that  the  books  were  second-hand.  The  defen- 
dant had  the  right  to  rebind  a  copyrighted  book  and  it 
was  not  an  infringement  of  the  copyright;  but  it  was 
unfair  competition  to  rebind  second-hand  books  for 
resale  in  such  a  manner  that  they  might  pass  for  new 
books  and  so  enter  into  competition  with  the  books 
published  by  the  proprietor  of  the  copyright,  imless 
the  person  so  rebinding  marked  the  cover  so  as  to  dis- 
tinguish the  second-hand  edition  from  the  new. 
Order  granting  temporary  injunction  reversed. 


Section  7. 

Remedies  and  Penalties. 

Corporation  Infringes.    Officer's  Liability. 

Stuart  v.  Smith. 

Circiait  Court,  Southern  District  of  New  York,  April,  1895. 

68  Fed.  R.  189. 

Complainant  sold  her  right  to  publish  her  story, 
Carlotta  di  Carlo,  to  the  Lippincotfs  Magazine,  but 


Remedies  and  Penalties  159 

the  contract  did  not  (according  to  the  dictum  of  Judge 
Townsend)  carry  the  copyright.  Mrs.  Stuart  after- 
wards copyrighted  the  story.  Previously  the  Lip- 
pincotts  had  assigned  the  right  to  pubHsh  it  to  the 
American  Press  Association,  of  which  the  defendant  is 
president,  and  it  pubHshed  the  same.  On  suit  for  in- 
fringement defendant  contended  that  he  was  not  per- 
sonally liable  for  the  wrongs  of  the  corporation. 

Townsend,  District  Judge,  held :  "  The  answer  alleges 
and  the  evidence  shows  that  said  American  Press  As- 
sociation, of  which  the  defendant  is  president,  is  a 
corporation.  There  is  no  question  as  to  its  financial  re- 
sponsibility. It  has  not  been  joined  as  a  party  defend- 
ant in  this  suit.  The  evidence  shows  that  the  alleged 
infringing  acts  were  committed  by  said  corporation, 
contrary  to  the  express  instructions  of  defendant,  and 
without  his  knowledge,  and  that  the  first  intimation 
he  had  that  said  story  had  been  published  by  said 
corporation  was  when  he  was  served  with  the  papers  in 
this  case.  In  these  circumstances  it  would  be  contrary 
to  the  well-settled  rules  of  equity  to  hold  this  defendant 
alone  personally  liable  for  such  wrongful  acts  merely 
because  he  was  an  officer  of  said  corporation." 

Bill  dismissed. 

Liability  of  a  Corporation.    Extent  of 
Penalty. 

Falk  v.  Curtis  Publishing  Company. 

Circuit  Court,  Eastern  District  of  Pennsylvania,  January,  1900. 

98  Fed.  R.  989. 

Circuit  Court,  Eastern  District  of  Pennsylvania,  February,  1 900. 

100  Fed.  R.  77. 

The  complainant  brought   suit  against  the  Curtis 

PubHshing  Company  for  the  statutory  penalty  for  the 


i6o        Decisions  of  American  Courts 

infringment  of  a  copyright  of  a  photograph.  The  latter 
demurred  on  several  groimds,  only  two  of  which  were 
important.  These  were,  i.  That  the  penalty  was  only 
incurred  by  a  natural  person  and  not  by  a  corporation ; 
2.  That  the  penalty  was  limited  to  copies  actually  found 
in  the  possession  of  the  defendant  and  did  not  extend 
to  those  traced  to  it,  and  the  complaint  failed  to  state 
that  these  copies  were  found  in  the  possession  of  the 
defendant. 

Dallas,  Circuit  Judge,  held:  *'The  real  question  is 
whether  the  Congress  intended  in  using  the  words  '  any 
person'  to  discriminate  between  two  sets  of  persons 
(natural  and  artificial)  equally  well  known,  and  both 
recognized  bylaw.  No  reason  has  been  suggested 
which  could  have  induced  such  an  intent,  and  to  me  it 
seems  that  to  ascribe  to  Congress  a  purpose  to  exempt 
corporations  from,  while  subjecting  natural  persons  to, 
the  penalties  imposed  by  this  section  would  be  to 
assume  that  it  purposed  a  manifestly  unreasonable 
consequence ;  and  of  this  the  Court  should  not  be  per- 
suaded, except  by  clear  and  unequivocal  expression. 
But  Congress  has  distinctly  declared  its  intent  to  the 
contrary;  for  the  first  section  of  the  Revised  Statutes 
prescribes  that:  *In  determining  the  meaning  of  the 
Revised  Statutes  .  .  .  the  word  "person"  may 
extend  and  be  applied  to  partnerships  and  corpora- 
tions, imless  the  context  shows  that  such  words  were 
intended  to  be  used  in  a  more  limited  sense." 

On  the  second  point,  he  sustained  the  demurrer  because 
the  penalty  related  only  to  those  sheets  actually  found 
in  the  possession  of  the  defendant,  and  it  was  not  alleged 
that  the  sheets  had  been  so  found.  This  was  on  the 
authority  of  Bolles  v.  Outing  Company,  175  U.  S.  262. 

On  a  second  demurrer  to  the  amended  bill,  Judge 


Remedies  and  Penalties  i6i 

Dallas  held  it  sufficient.  The  chief  question  was 
whether  the  Circuit  Court  had  jurisdiction  to  recover 
a  penalty.  Actions  for  penalties  in  general  are  in  the 
exclusive  jurisdiction  of  the  district  courts,  but  when 
arising  under  the  copyright  law  they  may  be  brought 
in  the  Circuit  Court.*  The  other  points  were  questions 
of  technical  pleading. 
Demurrer  overruled. 

The  case  was  tried  and  a  verdict  of  $3000  given  for 
the  plaintiff  subject  to  a  reservation  of  law  upon  the 
question  whether  an  action  could  be  maintained  to  re- 
cover penalties  for  infringing  sheets  foimd  in  the  pos- 
session of  the  defendant  before  such  sheets  have  been 
actually  foimd  in  possession  of  such  person  on  the 
service  of  a  writ  of  replevin. f 

The  Circuit  Court  of  Appeals  (Judge  Buffington 
writing  the  opinion,  107  Fed.  R.  126),  affirming  the 
Circuit  Court  held,  that  where  an  action  to  recover 
the  penalty  and  an  action  in  replevin  to  seize  the  sheets 
were  started  at  the  same  time,  the  former  was  prema- 
ture. The  statute  only  allows  a  penalty  on  sheets 
foimd  in  the  possession  of  the  defendant,  and  when  the 
action  for  the  penalty  was  begun,  the  sheets  had  not 
been  found,  because  the  action  of  replevin  was  started 
at  the  same  time.  Hence  there  was  no  cause  of  action 
for  the  penalty  yet  accrued  within  the  meaning  of  the 
statute,  t 

Decree  affirmed. 

*  See  Patterson  v.  Ogilvie,  119  Fed.  R.  451.  as  to  damages  xmder 
R.  S.  §  4964,  and  McDonald  v.  Hearst,  95  Fed.  R.  656,  as  to  penalty 
under  §  4965. 

t  See  also  Child  v.  Times  Company,  no  Fed.  R.  527,  holding  that 
the  penalty  only  relates  to  copies  actually  found  in  the  possession  of 
an  infringer. 

X  As  to  the  proper  form  of  remedy,  it  has  been  held  in  Pennsyl- 


1 62         Decisions  of  American  Courts 

Principars  Liability  for  Infringement  by 
Agent. 

McDonald  v.  Hearst. 

Circuit  Court,  Northern  District  of  California,  July,   1899. 
95  Fed.  R.  656. 

Complainant  was  the  proprietor  of  a  copyrighted  map 
which  the  defendant  published  without  his  consent  in 
the  Examiner,  a  San  Francisco  newspaper;  defendant 
in  answer  to  the  complaint  in  the  action  brought  under 
R.  S.  §  4965  to  recover  the  penalty  alleged  that  he  was 
not  in  the  State  at  the  time  of  the  publication  of  the  map 
in  his  paper ;  and  that  it  was  done  by  his  agents  without 
his  knowledge,  orders,  or  consent.  On  demurrer  to  this 
answer,  the  defendant  urged  that  as  the  action  imder 
§  4965  was  to  recover  a  penalty,  the  defendant  as  princi- 
pal was  not  liable  for  a  penalty  for  an  act  done  by  an 
agent  without  his  knowledge  or  consent. 

De  Haven,  District  Judge,  upheld  this  contention, 
saying :  **  The  action  authorized  by  this  section  in  so  far 
as  the  action  relates  to  the  recovery  of  money,  is  one  to 
enforce  a  penalty.  This  seems  too  clear  to  admit  of 
argument.  That  the  money  judgment  which  may  be 
recovered  therein  is  not  intended  solely  to  compensate 

vania  that  replevin  will  not  lie,  because  in  an  action  of  replevin  the 
defendant  might  give  bond  so  as  to  restrain  possession  of  the  goods 
in  question  and  consequently  forfeiture  would  thereupon  be  barred. 
Rinehardtt;.  Smith,  121  Fed.  R.  148. 

The  Circuit  Court  of  Appeals  in  New  York  has  held  that  the 
action  to  recover  forfeited  sheets  was  not  one  of  replevin,  but  was 
merely  an  action  under  the  statute  and  therefore  no  demand  need 
be  made  prior  to  bringing  suit,  because  the  right  to  the  forfeited 
sheets  depends  upon  the  statute  and  not  upon  a  demand  as  in  re- 
plevin.    Hegeman  v.  Springer,  no  Fed.  R.  374. 

The  Circuit  Court  of  Illinois,  on  the  other  hand,  held  that  replevin 
will  lie  to  enforce  a  forfeiture  under  the  copyright  law.  Morrison  v. 
Pettibone,  87  Fed.  R.  330. 


Remedies  and  Penalties  163 

a  plaintiff  for  the  damage  which  he  may  have  suffered 
by  reason  of  the  infringement  of  his  copyright  could  not 
be  made  clearer  than  it  has  been  by  the  declaration 
of  the  statute  that  one  half  of  the  money  recovered 
shall  go  to  the  plaintiff,  *  and  the  other  half  to  the  use 
of  the  United  States.'  .  .  .  The  action  being,  then, 
penal,  the  same  principle  which  exempts  the  master 
from  the  payment  of  exemplary  or  ptinitive  damages 
for  the  wrongful  act  of  his  servant,  when  he  did  not 
himself  participate  in  such  act,  is  applicable  here ;  and 
if  the  defendant  was  not  himself  guilty  of  some  mis- 
conduct, which  in  the  eye  of  the  law  would  make  him 
a  participant  in  the  act  of  his  servant,  in  violating  the 
plaintiff's  copyright,  and  such  act  was  done  without 
his  authority,  knowledge,  or  consent,  he  is  not  subject 
to  the  penalty  provided  by  the  statute  and  sued  for  in 
this  action." 

Demurrer  to  answer  overruled. 

Condition  Precedent  to  Suit.* 

Edward  Thompson  Company  v.  American  Law 
Book  Company. 

Circuit  Coiirt,  Southern  District  of  New  York,  October,  1902. 
119  Fed.  R.  317. 

In  an  action  for  infringement,  the  defendant  demurred 
to  the  complaint  on  the  groimds,  i.  That  it  did  not 
show  that  the  title  deposited  with  the  Librarian  had 
actually  been  recorded.  2.  That  the  plaintiff  being 
a  corporation  cannot  be  an  author,  and  3.  That  it 
shows  no  source  of  title,  although  it  alleges  that  the 

*  See  also  as  to  condition  precedent  to  suit  Hegeman  v.  Springer, 
110  Fed.  R.  374. 


1 64        Decisions  of  American  Courts 

complainant  is  the  proprietor  as  well  as  the  author. 
Judge  Townsend  sustained  the  demurrer  on  the  first 
groimd,  holding  that  it  was  necessary  to  show  actual 
recording  as  well  as  mere  deposit  for  record.  He  over- 
ruled the  other  causes  of  demurrer,  as  it  was  not  neces- 
sary to  show  a  source  of  title  when  proprietorship  is 
alleged  and  it  was  immaterial  whether  the  corporation 
could  be  an  author  since  it  was  alleged  that  it  was  the 
proprietor. 

Demurrer  sustained. 

Jurisdiction  in  Cases  of  Copyright.* 

HoYT  V.  Bates. 

Circuit  Court,  District  of  Massachusetts,  July,  1897. 
81  Fed.  R.  641. 

Complainant  was  the  author  of  a  play  (A  Black 
Sheep)  which  contained  a  song,  Sweet  Daisy  Stokes. 
The  defendants  were  licensed  to  print  such  song. 
Without  complainant's  knowledge  or  consent  defendant 
copyrighted  the  song.  The  complainant  brought  an 
action  in  equity  to  force  defendant  to  assign  the  copy- 
right. This  was  brought  in  the  state  court,  and  de- 
fendant had  it  removed  to  the  United  States  Court. 
The  complainant  moved  to  remand  it.  The  defendant 
contended  that  as  the  subject-matter  was  a  copyright 
under  the  United  States  statute,  it  was  for  the  federal 
courts. 

*  For  other  cases  relating  to  jurisdiction  in  copyright  cases  see 
Jewellers'  Agency  v.  Jewellers'  Publishing  Company,  155  N.  Y.  241 ; 
Falk  V.  Curtis,  100  Fed.  R.  77;  Larrowe-Loisette  v.  O'Loughlin, 
88  Fed.  R.  896;  Brady  v.  Daly,  175  U.  S.  148;  Press  Publishing 
Company  v.  Monroe,  73  Fed.  R.  196;  Lorimer  v.  Boston  Herald  Co. 
(not  reported). 


Remedies  and  Penalties  165 

Putnam,  Circuit  Judge,  held :  "  We  are  of  the  opinion 
that,  within  the  purview  of  the  decisions  of  the  Supreme 
Court,  the  case  is  not  one  arising  under  the  copyright 
laws  of  the  United  States,  and  that  it  presents  no 
federal  question;  and  that  therefore,  the  state  court 
had  full  jiirisdiction  over  it,  and  it  must  be  remanded. 
.  .  .  This  bill  assumes  that  the  copyright  is  valid, 
and  it  alleges  no  infringement,  nor  anything  which 
can  raise  any  question  as  to  its  scope  or  liability.  On 
this  statement  of  the  pleadings,  the  only  issue  pre- 
sented by  the  bill  is  one  of  title,  depending  upon  the 
rules  of  the  common  law,  and  in  no  way  on  any  statute 
of  the  United  States.'* 

Suit  remanded  to  state  court. 

Action  for  a  Penalty.  Statute  of  Limitations. 

Wheeler  v,  Cobbey. 

Circtlit  Coiirt,  District  of  Nebraska,  November,  1895. 
70  Fed.  R.  487. 

Action  to  recover  damages  under  §  4964  of  the 
Revised  Statutes  for  violating  a  cop3n-ight  of  a  com- 
pilation and  annotation  of  the  laws  of  Nebraska.  The 
defendant  demurred  and  set  up  the  statute  of  limita- 
tions (see  Revised  Statutes  §  4968),  alleging  that  the 
recovery  sought  was  in  the  nature  of  a  forfeiture  and 
was  barred  because  two  years  had  passed  since  the 
acts  complained  of  were  done. 

Section  4964  provides  that  every  person  who  shall 
infringe  a  copyright  of  a  book  "  shall  forfeit  every  copy 
thereof  to  such  proprietor,  and  shall  also  forfeit  and 
pay  such  damages  as  may  be  recovered  in  a  civil  ac- 
tion."   Section  4968  provides  that  "no  action  shall  be 


1 66        Decisions  of  American  Courts 

maintained  in  any  case  of  forfeiture  or  penalty  under 
the  copyright  laws  unless  the  same  is  commenced  within 
two  years  after  the  cause  of  action  has  arisen." 

Shiras,  District  Judge,  held  that  the  damages  re- 
covered -under  this  section  were  a  forfeiture  as  the 
statute  read.*  The  copies  of  the  book  admittedly 
were  not  subject  to  forfeiture  after  two  years,  and  the 
use  of  the  same  word  **  forfeit'*  with  respect  to  the  dam- 
ages indicated  that  the  same  should  be  true  of  them. 
If  they  were  not  a  forfeiture  or  penalty  the  language 
should  have  been  different.  The  complainant  treated 
the  section  as  if  it  read  "shall  be  liable  also  for  dam- 
ages" instead  of  "  shall  forfeit  and  pay  such  damages." 
Being  a  forfeiture,  the  action  was  barred. 

Demurrer  sustained. 

Action  for  Penalties.    Cut  in  Newspaper. 

Bennett  v.  Boston  Traveler  Company. 

Circuit  Court  of  Appeals,  First  Circuit,  March,  1900. 
loi  Fed.  R.  445. 

Complainant  brought  this  action  to  recover  the 
penalty  imposed  by  §  4965  for  the  infringement  of 
a  copyrighted  engraving.  In  1898  he  published  in 
the  New  York  Herald  a  cut  entitled,  William^  Keep 
off  the  Grass.  The  issue  of  the  paper  in  which  it  ap- 
peared was  copyrighted,  but  the  cut  was  not.  About 
a  week  later  defendant  printed  a  similar  cut  in  the 
Boston  Traveler. 

Colt,  Circuit  Judge,  held:    "The  plaintiff  contends 

♦See  to  the  contrary  Patterson  v.  Ogilvie,  119  Fed,  R.  451; 
where  Judge  Lacombe  holds  that  ?  4964  provides  for  damages  and 
not  for  a  penalty  or  forfeiture,  and  that  the  period  of  limitation  in 
1 4968  does  not  apply. 


Remedies  and  Penalties  167 

that  a  newspaper  is  a  book  within  the  meaning  of  the 
copyright  law ;  and,  assuming  this  to  be  true,  it  is  ad- 
mitted that  he  could  have  brought  an  action  for  in- 
fringement under  §  4964,  claiming  that  the  cut  in 
question  was  a  material  part  of  the  subject-matter  of 
his  copyright.  But  this  is  not  the  plaintiff's  case.  He 
has  brought  suit  imder  §  4965  for  infringement  of 
his  copyrighted  cut,  and  not  tmder  §  4964  for  in- 
fringement of  his  copyrighted  paper.  .  .  .  The 
Court  below  said :  '  I  hold  with  respect  to  the  pro- 
visions of  §  4965  that  the  Revised  Statutes  re- 
quire that  the  copyright  of  an  engraving  as  such  shall 
be  taken  out  separately  and  apart  from  the  newspaper 
in  which  the  engraving  is  contained;  and  that,  if  a 
party  desires  to  copyright  an  engraving  separately  and 
apart  from  the  newspaper  in  which  it  is  contained,  he 
must  send  a  separate  description  of  it  to  the  Librarian 
of  Congress,  he  must  take  out  a  separate  copyright  for 
it,  and  he  must  mark  each  separate  engraving  **  Copy- 
righted, 1898,"  etc.  That,  it  is  admitted,  has  not  been 
done  in  this  case.  I  hold,  therefore,  that  the  copyright 
of  the  plaintiff  in  this  case  is  only  the  copyright  of  the 
paper  as  a  whole,  and  that  if  he,  tmder  these  circum- 
stances, desires  to  proceed  for  an  infringement  of  copy- 
right, he  must  proceed  for  the  infringement  of  the 
copyright  of  the  paper.  This  he  would  be  entitled  to 
do,  for  the  copyright  of  the  whole  paper  is  infringed  by 
reproducing  any  substantial  part  of  it.  But  there  are 
special  provisions  for  the  copyright  of  engravings  as 
such ;  and  the  provisions  of  the  law  as  to  the  copyright 
of  engravings  as  such  I  hold  have  not  been  carried  out 
in  this  case.' 

"We  agree  with  this  ruling  of  the  court  below.    .    .    . 

**The  plaintiff  asks  us  to  construe  §  4965  as  if  a 


1 68        Decisions  of  American  Courts 

book  was  included  among  the  enumerated  articles. 
This  cannot  be  done,  especially  as  the  preceding  sec- 
tion gives  a  specific  remedy  in  the  case  of  books.  The 
fact  is  the  plaintiff  has  sought  to  take  out  a  copyright 
on  his  paper  alone,  and  he  has  not  seen  fit  to  take  out  a 
separate  copyright  on  his  cut.  He  may  be  entitled  to 
the  remedy  provided  by  statute  for  the  infringement  of 
the  thing  which  he  has  copyrighted.  He  is  not  entitled 
to  another  remedy  provided  by  statute  for  the  infringe- 
ment of  another  thing  which  he  has  not  copyrighted.'* 
Judgment  affirmed. 

For  other  cases  relating  to  suits  for  penalties,  see 
Brady  v.  Daly,  ly^  U.  S.  148;  Morrison  v.  Pettibone, 
8y  Fed.  R.  jjo;  Child  v.  Times,  no  Fed.  R.  527;  Pat- 
terson V.  Ogilvie,  iig  Fed.  R.  4^1;  Falk  v.  Curtis  Pub. 
Co.,  107  Fed.  R.  126;  McDonald  v.  Hearst,  pj  Fed.  R. 
656;  Bolles  V.  Outing  Co.,  175  U.  S.  262;  Trow  v.  Boyd, 
P7  Fed.  R.  586. 

Enforcing  a  Forfeiture.*    Replevin.f 

Morrison  v.  Pettibone. 

Circuit  Court,  Northern  District  of  Illinois,  May,  1897. 
87  Fed.  R.  330. 

Complainant  brought  an  action  of  replevin  to  enforce 
a  forfeiture  of  infringing  plates  and  sheets  found  in  the 
possession  of  the  defendants,  and  obtained  a  verdict. 

♦For  cases  relating  to  remedies,  see  also  Rinehardt  v.  Smith,  121 
Fed.  R.  148;  Hegeman  v.  Springer,  no  Fed.  R.  374;  Falk  v.  Curtis 
Pub.  Co.,  107  Fed.  R.  126. 

With  regard  to  remedy  by  mandamus,  see  United  States  v.Yowag, 
26  W.  L.  R.  546. 

For  cases  relating  to  damages,  see  D'Ole  v.  Kansas  City  Star 

t  For  cases  on  enforcing  forfeiture  by  replevin  see  p.  161,      note. 


Remedies  and  Penalties  169 

On  a  motion  for  a  new  trial,  two  points  were  at  issue : 
I .  Was  replevin  the  proper  form  of  action  ?  2 .  Were  the 
sheets  containing  the  first  or  outline  impression  only, 
and  not  completed  as  a  copy,  within  the  provision  of 

§4965? 

Seaman,  District  Judge,  held:  "I  conclude  for  the 
purposes  of  this  motion,  at  least,  that  any  doubt  as  to 
the  proper  remedy  may  be  resolved  in  favor  of  this 
form  of  action,  and  that  such  ruling  may  be  based  upon 
the  hypothesis  that  the  term  'forfeit,*  as  used  in  the 
statute,  is  not  to  be  taken  in  its  strict  ordinary  sense ; 
that  the  act  of  Congress  clearly  intending  to  give  to  the 
proprietor  an  exclusive  right  of  property  in  that  which 
has  been  produced  by  his  mind  and  skill  confers  as  well 
an  ownership  in  all  copies  which  are  made  by  infringers ; 
that  through  the  act  of  piracy  the  title  to  the  imita- 
tion vests  in  the  proprietor  of  the  copyright,  in  that 
sense  only  being  forfeited ;  and,  so  regarded,  replevin 
would  lie  to  obtain  possession. 

'*  The  claim,  however,  that  the  bare  outline  printed 
upon  the  sheets  in  evidence  constitutes  a  copy,  within 
the  purview  of  the  statute,  is,  in  my  opinion,  tmtenable. 
It  is  well  settled  that  the  provisions  of  this  statute 
must  be  strictly  construed.  .  .  .  It  is  probably 
true,  as  remarked  in  Fishel  v.  Lueckel,  that  substantial 
imitation,  and  not  marketable  value  and  quality,  is  the 
test  of  infringement;  but  the  imitation  must  be  of 
a  substantial  part,  must  have  essence,  and  be  so  far 

Company,  94  Fed.  R.  840;  Belford  v.  Scribner,  144  U.  S.  488;  Press 
Publishing  Company  z;.  Monroe,  73  Fed.  R.  196. 

For  cases  relating  to  scope  of  injunctions,  see  West  Pub.  Co.  v. 
Lawyers'  Pub.  Co.,  79  Fed.  R.  756;  Harper  v.  Ranous,  67  Fed.  R. 
904;  Ladd  V.  Oxnard,  75  Fed.  R.  703;  Doan  v.  The  Book  Co.,  105 
Fed.  R.  772;  American  T.  Reg.  Ass'n  v.  Gocher,  70  Fed.  R.  237; 
Stanley-Bradley  Co.  v.  LesHe  (not  reported,  see  p.  113.) 


1 70        Decisions  of  American  Courts 

perfected  as  to  establish  the  identity.  In  other  words, 
infringement,  for  the  purposes  of  f orfeitiire,  must  be  an 
accompHshed  fact,  must  appear  from  the  face  of  the  pro- 
duction, and  not  be  inferred  from  what  was  intended 
if  it  had  been  completed.  ...  In  this  case  the 
sheets  were  seized  in  the  defendant's  possession  when 
the  first  impression  only  had  been  taken,  presenting 
merely  the  initial  color  and  exterior  lines  of  the  intended 
lithograph,  without  the  features  or  any  substantial  em- 
bodiment of  the  copyright  photograph.  Several  plates 
or  stones  were  required  to  make  the  copy,  being  in  actual 
readiness  for  the  purpose,  but  one  only  had  been  used, 
making  this  outline  color.  I  am  satisfied  that  no  copy 
was  produced  within  the  meaning  of  the  statute." 
Motion  for  a  new  trial  granted. 

Action  to  Recover  Penalty. 

Child  v.  New  York  Times  Co. 

Circtiit  Court,  Southern  District  of  New  York,  May,  1901. 
no  Fed.  R.  527. 

In  an  action  under  §  4965  of  the  Revised  Statutes 
for  an  infringement  of  a  photograph  the  complainant 
sought  to  recover  a  penalty  of  one  dollar  for  each  of  a 
mmiber  of  copies  of  the  Times  purchased  by  him  con- 
taining the  alleged  infringing  act.  On  a  motion  for  a 
new  trial,  Hazel,  District  Judge,  held  that  as  these 
sheets  had  not  been  seized  for  purposes  of  forfeiture 
and  condemnation,  the  right  of  action  to  recover  the 
forfeited  penalties  had  not  accrued.  No  papers  had 
been  "fotmd  in  the  possession"  of  the  defendant 
within  the  meaning  of  the  statute.* 

Motion  for  new  trial  granted. 

*  See  Falk  v.  Publishing  Co.,  107  Fed.  R.  126. 


Remedies  and  Penalties  171 

Action  for  a  Penalty.    Infringement  of  a 
Photograph. 

Falk  v.  Heffron. 

Circuit  Court,  Eastern  District  of  New  York,  May,  1893. 
56  Fed.  R.  299. 

The  plaintiff  had  a  copyright  on  a  photograph  of 
LiUian  Russell.  Defendants  made  2400  lithograph 
copies  without  permission;  these  were  printed  21  or  22 
on  a  sheet,  and  there  were  115  sheets.  In  an  action  to 
recover  a  penalty  the  jury  fotmd  that  there  were  115 
sheets  and  a  verdict  of  $115  ($1  penalty  on  each  sheet) 
was  awarded.  Plaintiff  moved  for  a  new  trial,  contend- 
ing that  he  should  recover  $1  for  each  of  the  2400 
photographs. 

Wheeler,  District  Judge,  held  that  the  verdict  was 
proper,  as  the  statute  provides  a  penalty  for  each 
"sheet,"  irrespective  of  what  is  printed  thereon.  This 
being  a  penalty,  the  law  must  be  strictly  construed,  and 
the  number  of  sheets,  not  the  ntimber  of  photographs, 
taken  into  accoimt. 

Motion  for  a  new  trial  denied. 


III. 

Decisions  of  the  Treasury  De= 

partment  on  Questions  of 

Importation. 


173 


in 


Decisions   of   the   Treasury   Depart- 
ment on  Questions  of  Importation. 

Treasury  Department;    O.  L.  Spaulding,  Assist- 
ant Secretary.    Treas.  Dec.  No.  21,012. 
April  17,  1899. 

The  question  was  whether  a  musical  composition 
copyrighted  in  the  United  States  and  printed  abroad 
could  be  imported  without  complying  with  the  proviso 
as  to  being  made  from  type  set,  or  from  negatives  or 
drawings  on  stone,  made  in  the  United  States.  Under 
the  rule  as  laid  down  in  Littleton  v.  Oliver  Ditson  Co., 
62  Fed.  R.  597,  it  was  held  that  these  requirements 
do  not  apply  to  musical  compositions.  Therefore, 
their  importation  was  not  prohibited  *  by  reason  of 
failure  to  comply  with  the  provision  that  books, 
chromos,  etc.,  must  be  made  from  type  set  or  drawings 
on  stone  made  within  this  coimtry. 

*  It  appears  from  the  decision  that  the  importation  was  made  by 
the  proprietors  of  the  copyright.  Had  any  other  person  sought  to 
import  the  music  without  the  consent  of  the  proprietors,  its  importa- 
tion would  have  been  prohibited,  not  for  failure  to  comply  with  the 
manufacturers'  clause,  but  by  force  of  the  penal  clause  of  the  statute 
(§.  4965).     See  Treas.  Dec.  No.  23,225,  post,  p.  177. 

175 


1 76    Decisions  of  the  Treasury  Department 

Treasury  Department;  O.  L.  Spauldino,  Assist- 
ant Secretary.  Treas.  Dec.  No.  22,751.  Janu- 
ary 26,  1 90 1. 

The  question  was  submitted  to  the  Treasury  De- 
partment whether  if  a  book  is  published  abroad  and 
copyright  is  duly  obtained  in  the  United  States  in  the 
original  tongue,  it  is  lawful  to  import  the  same  book  in 
the  same  language  into  this  cotmtry.  UAiglon  was 
published  in  Paris  by  E.  Fasquelle,  who  also  secured  a 
copyright  for  it  in  the  United  States,  which  copyright 
was  assigned  to  Brentano  in  New  York.  An  attempt 
was  made  by  the  French  publisher  thereafter  to  im- 
port a  French  edition  of  UAiglon  into  the  United  States. 
The  Department  ruled,  on  the  basis  of  an  opinion  by 
the  Attorney-General,  that  such  importation  was  pro- 
hibited. The  provision  in  §4956,  Revised  Statutes, 
that  ""  in  the  case  of  books  in  foreign  languages,  of  which 
only  translations  in  English  are  copyrighted,  the  pro- 
hibition of  importation  shall  apply  only  to  the  trans- 
lation of  the  same,  and  the  importation  of  the  books  in 
the  original  language  shall  be  permitted,"  does  not 
cover  this  case.  Here  the  original  French  edition  was 
copyrighted.  Hence  the  exception  quoted  whereby 
importation  is  permitted  to  works  in  foreign  languages 
is  inapplicable.  Otherwise  a  book  in  a  foreign  language 
could  not  be  effectively  copyrighted  in  this  coimtry 
imderthe  Act  of  1891.  Importation  of  this  book  was, 
therefore,  prohibited. 

Treasury  Department;  O.  L.  Spaulding,  Assist- 
ant Secretary.  Treas.  Dec.  No.  22,781.  Feb- 
ruary 5,  1901. 

The  American  Book  Company,  the  publishers  of 
Liddell  &  Scott's  Greek-English  Lexicon,  asked  the 


Decisions  of  the  Treasury  Department    i  n 

Department  to  rule  on  the  question  whether  importa- 
tion of  their  Lexicon,  which  was  copyrighted  in  this 
cotmtry  in  1882,  was  prohibited  by  the  Act  of  1891. 
The  statute  reads :  "  During  the  existence  of  such  copy- 
right, the  importation  into  the  United  States  of  any 
book  ...  so  copyrighted,  or  any  edition  thereof 
.  .  .  shall  be  and  it  hereby  is  prohibited."  Upon 
the  opinion  of  the  Attorney-General,  the  Department 
ruled  that  books  copyrighted  prior  to  the  Act  of  1891 
are  not  prohibited  importation  by  that  act.  It  was 
thought  that  the  law  in  general  is  prospective  in  its 
effect;  and,  while  the  Attorney  General  recognized 
that  the  clause  against  importation,  being  remedial, 
might  affect  prior  copyrights,  yet,  as  it  particularly 
states  that  it  is  books  **  so  copyrighted  "  which  are  not 
to  be  imported,  during  the  existence  of  ''such  copy- 
right," and  the  copyright  referred  to  is  that  secured  by 
the  Act  of  1 89 1,  the  inference  is  that  only  books  obtain- 
ing copyright  under  that  act  are  prohibited  importa- 
tion.    The  Department  so  ruled. 

Treasury  Department:  O.  L.  Spaulding,  Assist- 
ant Secretary.  Treas.  Dec.  No.  23,225.  Au- 
gust 10,  1901. 

In  response  to  the  question  as  to  whether  copy- 
righted music  may  be  imported  the  Department  ruled 
that  it  cannot  be  lawfully  imported.  The  decision  was 
based  on  the  opinion  of  the  Attorney-General,  who  held 
that  two  questions  were  involved;  first,  whether  the 
copyright  law  prohibits  the  importation  of  copyrighted 
music;  second,  if  it  does,  whether  the  free  list  of  the 
tariff  of  1897  constitutes  an  exception  to  the  copyright 
law.  The  Act  of  1891  provides  (§  4956)  that  certain 
articles  expressly  stated  may  be  copyrighted ;   among 


1 78    Decisions  of  the  Treasury  Department 

these  are  musical  compositions.  In  another  section  it 
provides  that  during  the  Hfe  of  the  copyright  the  im- 
portation of  any  ''book,  chromo,  Hthograph,  or  photo- 
graph" is  prohibited;  but  does  not  include  musical 
composition  in  this  list.  If  this  were  the  only  pro- 
hibition in  the  act  music  might  be  imported;  but 
§§  4964-5  make  it  a  penal  offence  to  import  any  of  the 
articles  enumerated  in  §  4956.  This  includes  musical 
compositions.  This  can  mean  nothing  less  than  the 
prohibition  of  what  is  made  penal. 

As  to  the  free  list  in  the  tariff  of  1897  the  Attorney- 
General  held  that  it  had  no  effect  to  authorize  importa- 
tion contrary  to  the  terms  of  the  express  prohibition  of 
the  copyright  law.  The  tariff  is  to  prescribe  certain 
duties  on  importations;  it  is  not  designed  to  author- 
ize importation.  It  simply  provides  when  and  under 
what  circumstances  certain  articles  are  exempt  from 
duty.  Accordingly  copyrighted  musical  compositions 
are  not  taken  out  of  the  effect  of  the  copyright  law. 
They  are  prohibited  importation.  They  do  not  fall 
within  §  4956,  as  they  are  not  "books,  chromos, 
lithographs,  or  photographs,"  and  they  are  not  pro- 
hibited by  that  section ;  but  by  force  of  the  penal  sec- 
tion of  the  law  their  importation  is  prohibited ;  and  by 
reason  of  not  falling  within  the  class  of  articles  just 
named  they  do  not  get  the  benefit  of  the  exemption 
embodied  in  that  section  permitting  the  importation 
of  "not  more  than  two  copies  of  such  book  at  any  one 
time"  by  persons  who  import  for  use  and  not  for  sale. 

Treasury  Department;  Robert  B.  Armstrong,, 
Assistant  Secretary.  Treas.  Dec.  No.  24,742. 
October  26,  1903. 

The  Register  of  Copyrights  submitted  this  question 
to  the  Treasury  Department  for  a  ruling:  Are  books. 


Decisions  of  the  Treasury  Department    1 79 

copyrighted  in  the  United  States  and  printed  abroad 
from  plates  made  from  type  set  in  the  United  States 
prohibited  importation?  The  Department  answered 
that  the  Revised  Statutes  (§  4956)  provide  that  to 
obtain  copyright  two  copies  of  the  book  must  be  de- 
posited with  the  Librarian  of  Congress,  which  copies 
must  be  *'  printed  from  type  set  within  the  limits  of  the 
United  States,  or  from  plates  made  therefrom,"  and 
that  during  the  existence  of  such  copyright  the  im- 
portation of  any  edition  of  such  books  or  any  plates  of 
the  same  not  made  from  type  set  in  the  United  States 
is  prohibited.  In  this  case  there  are  books  printed 
abroad  from  type  set  here,  or  from  plates  made  there- 
from. The  law  does  not  require  that  the  books  be 
printed  in  the  United  States.  It  merely  states  that  the 
article  shall  be  produced  from  type  set  within  the  limits 
of  the  United  States  or  from  plates  made  therefrom. 
Hence  the  Department  holds  that  the  importation  of 
books  so  printed  abroad  is  not  prohibited. 


IV. 

Decisions  of  English  and  Can 
adian  Courts. 


i8l 


IV. 

Decisions  of   English   and  Canadian 
Courts. 

Section  1. 

Articles  Entitled  to  Copyright. 

Reports  of  Public  Speeches. 

Walter  v.  Lane. 

Hotise  of  Lords,  August,  1900. 
(1900)  A.  C.  539. 

During  1896  and  1898,  the  Eari  of  Rosebery  delivered 
several  speeches  on  subjects  of  public  interest.  Re- 
porters were  present  from  various  newspapers,  including 
the  Times.  A  reporter  for  the  Times  took  down  the 
speeches  in  shorthand,  wrote  out  his  notes,  corrected 
and  revised  the  same  for  publication  and  the  reports 
were  published  in  the  Times,  the  speeches  being  given 
verbatim  as  delivered.  In  1899  the  respondent  pub- 
lished a  book  called  Appreciations  and  Addresses:  Lord 
Rosebery.  It  consisted  of  reports  of  the  speeches  of 
Lord  Rosebery  which  were  taken  from  the  Times. 
The  reporters  of  the  Times  assigned  their  copyright  in 
the  articles  to  the  appellant,  who  brought  this  action 

183 


1 84   English  and  Canadian  Court  Decisions 

against  the  respondent  and  sought  an  injunction  and 
damages.  Justice  North  granted  an  injunction  re- 
straining the  respondent  iintil  judgment  in  the  action 
from  publishing  copies  of  the  book.  In  the  Court  of 
Appeal  on  the  agreement  that  the  decision  on  ap- 
peal should  be  taken  as  a  decision  on  trial  North,  J., 
was  reversed  and  the  action  dismissed.  On  these 
facts  it  was  held  by  the  House  of  Lords  reversing  the 
Court  of  Appeal  that  the  reporter  who  makes  notes  of  a 
speech  delivered  in  public  is  the  "  author"  of  the  report 
within  the  meaning  of  the  copyright  act  and  is  entitled 
to  the  copyright  in  the  report  and  can  assign  the  same. 
Decree  of  Court  of  Appeal  reversed. 

Newspaper  Articles  Protected. 

Walter  v.  Steinkopff. 

Chancery  Division,  May,  1892. 
(189a)  3  Ch.  489. 

The  plaintiffs  were  proprietors  of  the  Times  and 
the  defendants  were  proprietors  of  the  St.  James's 
Gazette.  On  the  13th  day  of  April,  1892,  an  article  by 
Rudyard  Kipling  entitled  *'In  Sight  of  Monadnock" 
was  published  in  the  Times.  From  this  article  the 
St.  James's  Gazette  copied  a  half-dozen  passages.  It 
was  stated  in  the  same  paper  that  the  article  had 
been  written  expressly  for  the  Times.  The  Times  had 
been  previously  registered  as  a  periodical  publication 
and  the  copyright  upon  the  article  by  Kipling  had 
been  purchased  and  paid  for  before  publication. 
An  action  was  brought  to  restrain  the  publication 
of  the  article  in  the  St.  James's  Gazette.  Justice 
North,  on  the  above  facts,  held  that  the  plaintiffs  had 
a  clear  copyright  in  the  Kipling  article  and  that  the  de- 


Articles  Entitled  to  Copyright        185 

fendants,  having  deliberately  reprinted  a  large  part  of 
the  article  in  which  the  plaintiffs  had  a  copyright, 
should  be  enjoined  from  further  publication  of  the  same. 
The  acts  of  the  defendants  were  not  mere  quotations, 
for  they  had  appropriated  about  two  fifths  of  the  whole 
article.  It  was  further  held  that  the  custom  of  news- 
papers to  copy  from  other  newspapers  was  no  defense  to 
an  action  on  copyright,  and  although  it  is  sometimes 
said  that  there  is  no  copyright  in  news,  the  Court 
thought  that  there  could  be  copyright  in  the  particular 
form  of  language  or  mode  of  expression  by  which  in- 
formation is  conveyed. 
Injunction  granted. 

Advertising  Poster  Not  Part  of  a  Periodical. 

Strong  v.  Worskett. 

Queen's  Bench  Division,  Jiily,  1896. 
12  T.  L.  R.  53a. 

An  action  was  brought  by  T.  V.  Strong,  the  proprietor 
of  Dorothys  Home  Journal  against  the  defendant  for 
infringement  of  copyright  in  that  periodical  and  for  an 
injunction.  The  plaintiff  alleged  that  the  defendant 
had  copied  from  the  journal  and  printed  a  sketch  of  a 
lady  in  evening  dress  and  had  published  the  sketch  in 
the  Ludgate  Monthly  in  December,  1895.  The  defend- 
ant contended  that  the  sketch  had  been  first  published 
as  a  poster  and  not  in  Dorothys  Home  Journal,  and  was 
not  drawn  for  and  had  not  been  copied  from  that 
magazine,  but  from  a  poster,  which  was  not  a  part 
thereof.  Wells,  J.,  held  that  the  poster  was  not  a  part 
of  the  periodical,  it  was  a  mere  advertisement,  which 
could  not  be  purchased  with  the  Journal.    The  poster 


1 86  English  and  Canadian  Court  Decisions 

was  published  before  the  Journal   and  not   pubHshed 
in  it,  and  plaintiff  was  not,  therefore,  within  the  pro- 
tection of  the  Copyright  Act. 
Judgment  for  the  defendant. 

Catalogue  May  be  Copyrighted. 

CoLLis  V.  Cater. 

Chancery  Division,  Jtine,  1898. 
78  L.  T.  (N.  S.)  613. 

The  plaintiff  was  a  chemist  doing  business  at  Bath 
and  annually  prepared  and  registered  a  catalogue,  en- 
titled The  Bath  Drug  Company  Price  Current,  of  articles 
and  drugs  sold  by  him,  which  were  arranged  under 
various  headings.  This  catalogue  was  published  an- 
nually, beginning  in  1894,  the  later  numbers  being,  re- 
visions of  the  earlier  ones,  with  some  additions.  The 
defendants  were  a  company  carrying  on  the  business  of 
grocers,  wine  merchants,  etc.,  and  upon  adding  a  drug 
department,  they  published  a  catalogue  for  the  quarter 
ending  June,  1898,  of  goods  sold  by  them.  As  far  as 
this  related  to  their  drug  trade  they  copied  plaintiff's 
catalogue  and  the  list  of  goods  comprised  therein,  with 
the  prices  at  which  they  were  sold.  This  copying  was 
admitted.  North,  J.,  held  that  it  was  an  infringement. 
The  Court  recognized  that  where  two  persons  were 
carrying  on  the  same  kind  of  a  business,  their  catalogues 
would  naturally  resemble  each  other  and  it  would  be 
difficult  to  make  them  differ  substantially,  but  in  this 
case  the  defendants  have  adopted  the  course  of  simply 
and  solely  copying  from  the  plaintiff.  It  was  contended 
that  the  catalogue  was  not  a  subject  of  copyright,  and  a 
distinction  was  attempted  between  a  large  catalogue  by 


Articles  Entitled  to  Copyright        187 

a  clever  author,  which  gives  a  great  deal  of  information 
and  is  interesting  to  readers,  and  a  catalogue  like  the 
plaintiff's,  which  is  nothing  whatever  but  a  simple  list 
of  useful  articles.  The  Court  thought,  however,  that 
it  must  be  admitted  that  there  was  a  direct  advantage 
in  having  such  catalogues  and  that  a  man  carrying  on 
business  without  them  would  be  at  a  disadvantage  and 
that  if  one  man  prepares  a  true  catalogue  of  the  articles 
he  deals  in,  a  man  who  has  not  a  catalogue  has  no  right 
to  appropriate  the  labor  of  his  neighbor.  This  throws 
all  the  burden  of  all  the  expense  and  trouble  of  mak- 
ing the  catalogue  directly  upon  one  man  and  permits 
another  to  obtain  equal  benefit  without  any  of  the  ex- 
pense. The  Court  thought  this  was  piracy  and  an 
injimction  was  granted  restraining  the  defendants 
from  publishing  their  catalogue. 
Injunction  granted. 

Copyright  in  Time-Tables. 

Leslie  v.  Young  &  Sons. 

House  of  Lords,  June,  1894. 
(1894)  A.  C.  335. 

This  was  an  appeal  from  the  Court  of  Sessions  in 
Scotland  in  an  action  for  an  injunction  for  an  alleged 
infringement  of  the  appellant's  copyright  in  certain  rail- 
way time-tables.  The  appellant's  time-tables  were  com- 
piled first  in  1875  and  included  details  as  to  railway, 
coach,  steamer,  and  mail  service.  The  information 
contained  in  these  time-tables  was  collected  at  great 
expense  and  as  the  result  of  great  labor.  They  were 
revised  monthly  with  extreme  accuracy  and  had  gained 
a  high  reputation.     In  them  selections  from  official 


1 88   English  and  Canadian  Court  Decisions 

time-tables  were  made.  The  respondent  copied  bodily 
from  the  appellant's  time-tables.  One  particular  fea- 
tiire  of  the  appellant's  work  was  the  compilation  of 
certain  toiirs  or  excursions  in  the  neighborhood  of  the 
city  of  Perth. 

The  House  of  Lords  held  on  appeal  that  the  appellant 
was  entitled  to  an  injimction  against  the  reproduction 
of  his  compilation  of  these  circular  tours,  since  it  was 
information  of  a  useful  sort  condensed  and  put  into 
convenient  form  by  the  individual  skill  and  labor  of  the 
appellant,  but  so  far  as  the  respondent  had  merely 
copied  the  official  time-tables  included  in  the  appel- 
lant's book,  it  was  no  infringement  and  no  injunction 
to  restrain  the  publication  of  that  part  of  the  respon- 
dent's books  should  be  granted. 

Judgment  reversed. 

Copyright  in  Trade  Directory. 

Lamb  v.  Evans. 

Coiirt  of  Appeal,  November,  1892. 
(1893.)     I  Ch.  218. 

The  plaintiff  was  the  publisher  of  The  International 
Guide  to  British  and  Foreign  Merchants  and  Manu- 
facturers, which  had  gone  through  several  editions  and 
was  registered.  It  contained  advertisements  for  the 
insertion  of  which  the  various  traders  paid  and  which 
were  arranged  imder  headings  describing  the  nature 
of  the  various  businesses.  In  some  cases  only  names 
and  addresses  were  given,  in  other  cases,  more  elaborate 
advertisements.  The  defendants  were  employed  by 
the  plaintiff  to  canvass  for  advertisements  on  the 
Continent  and  were  paid  commissions.  When  they 
ceased  to  be  employed  by  the  plaintiff  they  entered  the 


Articles  Entitled  to  Copyright        189 

service  of  a  rival  directory  company,  and,  as  the  plain- 
tiff alleged,  used  materials  acquired  in  his  employ. 
The  plaintiff  applied  for  an  injimction  against  these 
ex-employees  and  the  publishers  of  the  Commercial 
Directory. 

Mr.  Justice  Chitty  held  that  the  plaintiff  had  a  copy- 
right in  the  headings,  although  he  had  no  copyright 
in  the  advertisements,  and  this  decision  was  affirmed  by 
the  Court  of  Appeal,  which  also  added  that  it  seemed 
that  although  the  plaintiff  might  not  have  a  copyright 
in  a  single  advertisement  since  the  advertiser  must  be 
at  liberty  to  insert  it  in  other  publications,  the  plaintiff 
nevertheless  had  copyright  in  the  arrangement  of  the 
advertisements;  and  it  was  also  held,  affirming  the 
lower  court,  that  the  defendants  had  no  right  to  use  for 
the  purpose  of  any  other  publication  materials  which 
they  had  obtained  while  they  were  in  the  employment 
of  the  plaintiff. 

Judgment  affirmed. 

^pyi'isht  in  Commercial  Circulars. 

Church  v.  Linton. 

Chancery  Division,  Province  of  Ontario,  April,  1894. 

as  Ont  Rep.  131 

The  plaintiff  was  the  proprietor  of  a  school  for  the 
ciire  of  stammering  and  obtained  copyright  on  four 
publications  called  Applicant's  Blank,  Information  for 
Stammerers,  etc.  The  defendant,  who  had  been  a  pupil 
of  the  plaintiff,  subsequently  started  another  school  with 
the  same  object  and  issued  two  publications,  which  the 
plaintiff  alleged  were  infringements.     The  defendant 


190  English  and  Canadian  Court  Decisions 

contended  that  the  circulars  of  the  plaintiff  were  not 
of  such  a  nature  as  to  be  entitled  to  copyright. 

The  Court  held  that  the  circulars  came  within 
the  protection  of  the  copyright  law.  The  purely  com- 
mercial or  business  character  of  the  composition  or  com- 
pilation does  not  oust  the  right  to  protection  if  time, 
labor,  and  expense  had  been  devoted  to  its  production 
and  the  fact  that  the  defendant  was  anxious  to  make 
use  of  the  same  would  indicate  that  the  papers  were  of 
some  merit  and  utility. 

Injunction  granted. 


Section  2. 

Who  are  Entitled  to  Copyright. 

Proprietorship  of  Encyclopaedia  Articles. 

Lawrence  &  Bullen  v.  Aflalo  &  Cook. 

Hoiise  of  Lords,  November,  1903. 
(1904)  A.  C.  17. 

This  was  an  action  to  restrain  Messrs.  Lawrence  and 
Bullen  from  publishing  and  selling  a  book  called  The 
Young  Sportsman,  containing  articles  written  by  the 
plaintiffs  for  the  Encyclopcedia  of  Sport,  a  work  pub- 
lished by  the  defendants.  The  contention  of  the 
plaintiffs  was  that  they  sold  to  the  publishers  the  right 
to  use  the  articles  in  question  in  the  encyclopaedia,  but 
that  they  retained  for  themselves  the  copyright  therein. 


Who  are  Entitled  to  Copyright       191 

In  this  they  were  upheld  by  the  trial  court  and  also  by 
the  Court  of  Appeal.  The  publishers  carried  the  case 
to  the  House  of  Lords,  where  it  came  before  the  Lord 
Chancellor  and  Lords  Shand,  Davey,  and  Robertson. 
The  publishers  contended  that  under  §  18  of  the  Copy- 
right Act  of  1842  the  previous  consent  in  writing  of  the 
author  of  an  article  written  by  him  was  only  required  to 
be  obtained  where  the  article  was  part  of  or  first  pub- 
lished in  a  magazine  or  other  periodical,  but  the  articles 
in  question  being  part  of  an  encyclopaedia,  did  not  fall 
within  the  class  to  which  such  requirements  applied. 
They  also  contended  that  the  implied  terms  of  the  em- 
ployment were  that  the  copyright  shotdd  belong  to 
them  as  proprietors  of  the  encyclopaedia.  The  Lord 
Chancellor  held  that  it  must  be  inferred  from  the  facts 
that  the  right  to  obtain  copyright  was  intended  to  pass 
to  the  publishers,  otherwise  the  result  would  be  that  he 
would  get  nothing  from  his  bargain  and  imless  they 
held  that  the  publishers  and  proprietors  of  the  encyclo- 
paedia stood  in  the  shoes  of  the  actual  writer  and  was  the 
proprietor  of  the  copyright,  he  would  have  nothing  for 
his  money  because  the  articles  might  be  published  by 
others  and  he  would  have  no  remedy,  not  having  the 
copyright.  Under  the  circumstances  it  was  imreason- 
able  to  suppose  that  the  appellants  would  have  ex- 
pended a  very  large  stmi  in  a  project  attended  with 
great  risk  if  they  had  not  tmderstood  that  they  had,  by 
their  agreement,  acquired  a  complete  control  of  the 
copyright. 

JiAdgment  of  the  Court  of  Appeal  reversed. 


192   English  and  Canadian  Court  Decisions 

Proprietorship  in  Photographic  Copyright. 

Ellis  v.  Ogden. 

Queen's  Bench  Division,  November,  1894. 
II  T.  L.  R.  50. 

The  plaintiff  photographed  an  actress,  Miss  Mary- 
Moore,  who  sat  for  her  picture  on  his  invitation.  No 
payment  was  made,  asked,  or  expected  but  copies  were 
presented  to  Miss  Moore  as  a  present.  Thereafter  the 
Ludgate  Monthly  pubHshed  a  copy  without  permission 
of  the  plaintiff,  and  the  question  arose  on  trial  whether 
he  or  Miss  Moore  was  the  proprietor  and  entitled  to  the 
copyright.  It  was  held  by  Charles,  J.,  that  the  plaintiff 
took  the  photograph,  bestowed  his  skill  upon  it,  and 
was  imdoubtedly  the  author ;  that  Miss  Moore  paid  no 
price  for  it  and  that  the  mere  consent  to  sit  did  not  con- 
stitute a  valuable  consideration  which  would  make  her 
the  proprietor  of  the  picture. 

Judgment  for  the  plaintiff. 

Proprietorship  of  Photographic  Copyright. 

Ellis  v.  Marshall. 

Queen's  Bench  Division,  July,  1895. 

II  T.  L.  R.  523. 

The  plaintiff  was  a  photographer  and  invited  two 
actors  to  his  studio  to  be  photographed.  Their  pictures 
were  taken  in  costume  and  also  in  plain  clothes.  Copies 
of  both  kinds  of  photographs  were  sent  to  them  gratis, 
but  they  subsequently  bought  copies  of  the  plain  clothes 


Who  are  Entitled  to  Copyright       193 

picture.  Mr.  Nichols,  one  of  the  actors,  sent  one  of 
these  photographs  to  the  Ludgate  Monthly  and  it  was 
pubHshed  in  connection  with  an  article  concerning  him. 
On  the  trial  the  actors  both  testified  that  they  intended 
to  pay  and  did  pay  for  the  photographs  of  themselves 
taken  in  plain  clothes.  The  plaintiff  contended  that 
both  kinds  of  photographs  were  his  and  that  he  was 
entitled  to  the  copyright  on  them.  Collins,  J.,  held 
that  it  was  not  material  whether  the  actors  or  the  pho- 
tographer first  suggested  that  they  should  sit  in  plain 
clothes.  The  gentlemen  went  to  the  studio  intending 
to  be  photographed  in  plain  clothes ;  they  were  so  photo- 
graphed, received  the  proof,  and  paid  for  the  copies. 
Nothing  was  said  or  done  to  give  the  plaintiff  the  copy- 
right in  the  picture. 
Judgment  for  the  defendant. 

Registry  Must  be  in  Proprietor's  Name. 

Petty  v.  Taylor. 

Chancery  Division,  November,  1896. 
(1897  )     I  Ch.  465. 

The  plaintiffs  in  this  action  were  Petty  &  Sons,  a 
printing  company,  and  Wesley  Petty,  the  manager  of 
the  company.  An  action  was  brought  against  Taylor  & 
Winterbottom,  a  firm  of  printers,  claiming  an  injunction 
to  restrain  defendants  from  publishing  a  trade  catalogue 
called  the  Art  and  Virtue  of  Dressing  Well.  The  plain- 
tiffs alleged  that  Petty  &  Sons  were  beneficially  inter- 
ested in  the  copyright  in  this  circular  and  that  the 
plaintiff,  Wesley  Petty,  was  registered  as  proprietor 
thereof  for  and  on  behalf  of  Petty  &  Sons.     The  chief 


194   English  and  Canadian  Court  Decisions 

point  in  the  case  was  whether  the  registration  in  the 
name  of  Wesley  Petty  was  sufficient  under  the  copy- 
right act.  The  statute  provides  that  there  shall  be 
entered  on  the  register  the  name  and  place  of  abode 
of  the  proprietor  of  the  copyright.  In  each  entry 
Wesley  Petty  was  alone  described  as  the  proprietor  of 
the  copyright. 

Mr.  Justice  Kekewich  held  that  this  registration 
was  not  sufficient.  If  Wesley  Petty  was  not  the  pro- 
prietor, then  there  was  no  registration,  and  it  was  held 
upon  the  evidence  submitted  in  the  case  that  he  was  no 
more  than  an  agent,  the  manager  for  the  firm.  The 
plaintiff  contended  that  he  was  a  trustee,  but  the  Court 
held  that  a  mere  agent  of  an  incorporated  company 
cannot  be  regarded  as  a  trustee  for  such  company 
within  the  meaning  of  the  copyright  act,  and  that  as 
the  name  and  place  of  abode  of  the  person  in  whom  the 
copyright  was  vested  were  not  in  fact  stated  on  the 
register,  the  plaintiff's  case  must  fail. 

Injunction  denied. 

Right  to  Copyright  in  Works  of  Employees. 

Frowde  v.  Parrish. 

Chancery  Division,  Province  of  Ontario,  April,  1896. 

27  Ont.  Rep.  526. 

The  plaintiff  was  the  manager  of  the  Oxford  Univer- 
sity Press  of  London,  and  the  proprietor  of  a  copy- 
right in  a  book  called  Help  to  the  Study  of  the  Bible. 
This  book  was  published  in  Canada  from  stereotype 
plates  made  in  England,  and  the  defendants  imported 
reprints  of  this  copyrighted  book  made  in  the  United 


Who  are  Entitled  to  Copyright       195 

States.  The  defendant  contended  that  the  plaintiff 
had  no  vaHd  copyright  in  the  work.  The  Court  held 
that,  as  it  was  admitted  by  both  parties  that  the  book 
was  compiled  for  the  plaintiff  by  persons  who  were 
employed  and  paid  for  that  purpose,  this  worked  a 
transfer  of  the  right  to  obtain  a  copyright.  Since  no 
reserve  was  made  by  the  author  of  the  compilation,  the 
person  for  whom  the  work  was  done  was  entitled  to  the 
proprietorship  of  the  copyright  as  assignee  or  legal 
representative  of  the  author ;  and  imder  the  Canadian 
statute  it  was  held  sufficient  if  the  book  was  printed 
from  stereotype  plates  in  Canada  and  although  no 
typographical  work  was  done  there  in  the  preparation 
of  the  copies.  It  was  held  further  that  the  importa- 
tion of  American  reprints  of  the  book  which  were  added 
as  an  appendix  to  the  American  reprints  of  the  Bible 
constituted  an  infringement  of  the  plaintiff's  right. 
Injunction  granted. 

Proprietorship  Under  International 
Copyriglit. 

Geissendorfer  v.  Mendelssohn. 

Queen's  Bench  Division,  December,  1896. 
13  T.  L.  R.  91. 

This  was  an  action  to  expimge  an  entry  in  the 
Register  at  Stationers'  Hall.  The  defendant  employed 
an  artist,  Fraulein  Clara  Schuberg,  a  resident  of  Ger- 
many and  a  German  subject,  to  paint  a  certain  floral 
border  for  cards  designed  by  himself.  This  he  entered 
in  the  register.  The  plaintiff  moved  to  have  the  entry 
expimged  on  the  ground  that  the  author  of  the  painting 


196   English  and  Canadian  Court  Decisions 

was  not  entitled  to  copyright  within  §  i  of  the  Copy- 
right Act  of  1 86 2, which  provides  that  '*  the  author  being 
a  British  subject  or  resident  within  the  dominions 
of  the  Crown,  of  every  original  painting  .  .  .  which 
shall  be  or  shall  have  been  made  either  in  the  British 
dominions  or  elsewhere,  shall  have  the  sole  right  of 
copyrighting  such  painting  and  the  design  thereof." 
Under  this  section  Charles,  J.,  held  that  in  order  to 
acquire  the  copyright,  the  author  must  be  a  British 
subject  or  resident  within  the  dominions  of  the  Crown. 
As  Fraulein  Schuberg,  the  author,  was  not  a  British 
subject  and  was  resident  in  Germany,  this  section  did 
not  apply  and  the  entry  in  the  register  was,  therefore, 
expimged. 

Judgment  for  plaintiff. 

Proprietor  After  Assignment. 

MoRANG  &  Company  v.  Publishers'  Syndicate. 

Chancery  Division,  December,  1900. 
3a  Ont.  Rep.  393* 

This  case  arose  over  the  copyright  of  Parkfnan's 
A  Half  Century  of  Conflict.  At  the  time  of  his  death 
Francis  Parkman  was  entitled  to  a  copyright  in  the 
book  within  the  British  dominions,  including  Canada. 
After  his  death  the  copyright  had  been  assigned  to  the 
plaintiffs  in  this  action.  The  defendants  imported 
copies  of  the  book  into  Canada  and  sold  them  there. 
The  Court  held  that  the  imperial  "Act  to  amend  the 
Copyright  Act"  was  in  force  in  Canada  so  as  to  pro- 
hibit the  importation  of  reprints  from  abroad  by  any 
person  other  than  the  proprietor  of  the  copyright,  but 


Who  are  Entitled  to  Copyright       197 

it  was  further  held  that  this  action  could  not  be  main- 
tained for  failure  of  the  assignee,  the  plaintiff  in  this 
action,  to  comply  with  the  law  of  requiring  an  entry  to 
be  made  in  the  book  of  registry  of  the  Stationers'  Com- 
pany. Francis  Parkman  made  such  an  entry  on  the 
1 6th  of  Jime,  1892,  but  at  the  time  of  bringing  the 
action  the  proprietor  of  the  copyright  tinder  the  act 
was  not  Francis  Parkman,  but  the  plaintiff,  and  the 
plaintiff  had  never  made  entry  in  the  registry. 
Injunction  denied. 

International  Copyright:  Conflict  of  Laws. 

Hanfstaengl  V,  The  American  Tobacco 
Company. 

Cotirt  of  Appeal,  December,  1894. 

(1895)  I  Q.  B.  347. 

This  action  was  brought  to  restrain  the  defendants 
from  publishing  or  selling  copies  of  the  plaintiff's  copy- 
righted work.  The  Love  Letter.  The  picture  was  painted 
in  Italy  by  an  Italian  artist  and  sold  to  a  dealer  at 
Munich,  and  the  copyright  was  assigned  to  the  plaintiff 
at  Mimich,  and  it  appeared  that  in  Germany  no  regis- 
tration of  works  was  required  to  protect  the  owner  of 
the  copyright.  The  defendants  were  wholesale  dealers 
of  tobacco  in  America  doing  business  with  retail  dealers 
in  England ;  and  copies  of  the  picture  were  printed  in 
New  York  and  distributed  in  England  as  an  advertise- 
ment. The  plaintiff  argued  that  the  picture  was  first 
published  in  Germany  and  that  the  cop3mght  should  be 
governed  by  the  German  law,  while  the  defendants 
contended  that  the  copyright  had  been  taken  in  Italy, 
where  registration  is  required  for  works  of  art,  and 


igS   English  and  Canadian  Court  Decisions 

should  be  governed  by  Italian  law.  The  International 
Copyright  Act  of  Great  Britain  of  1886  provides 
"Where  an  order  (in  council)  respecting  any  foreign 
company  is  made  under  the  International  Copyright 
Acts  the  provisions  of  those  acts  in  respect  to  the  reg- 
istry and  delivery  of  copies  of  works  shall  not  apply  to 
works  produced  in  such  coimtry  except  so  far  as  pro- 
vided by  the  order.'*  The  order  of  1887  adopting  the 
Berne  Convention  contained  no  provision  with  respect 
to  registry,  and  it  was  held  by  the  Court  that  registration 
under  the  Fine  Arts  Copyright  Law  was  not  necessary 
to  entitle  the  owner  of  an  English  copyright  in  a  foreign 
painting  to  sue  for  infringement,  but  that  if  they  com- 
plied with  the  law  of  the  coimtry  of  origin  they  are 
entitled  to  protection  in  England  and  without  regard 
to  whether  they  have  complied  with  the  English  law. 
A  new  trial  was  granted  to  determine  whether  the 
country  of  origin  was  Germany,  as  contended  by  the 
plaintiff,  or  Italy,  as  contended  by  the  defendant. 
Under  the  terms  of  the  Convention  of  Berne  it  was 
thought  that  the  coimtry  in  which  the  painting  was 
first  published,  and  not  that  in  which  it  was  made, 
should  control  with  respect  to  the  law  of  registration. 
New  trial  granted. 

International  Copyright:  Vested  Interests. 

ScHAUER  V.  Field. 

Chancery  Division,  March,  1892. 

(1893)  I  Ch.  35. 

The  plaintiff,  a  German  subject,  had  a  copyright  in  a 
painting  called  Lisette,  produced  in  Germany  prior  to 


Who  are  Entitled  to  Copyright       199 

December,  1885,  and  also  a  copyright  in  a  photograph 
of  the  painting  as  a  distinct  work  of  art.  In  1887,  the 
defendants  registered  in  London  as  a  trade-mark  a 
photograph  of  Lisette  on  a  small  scale,  and  this  trade- 
mark was  used  by  the  defendants  on  their  goods  and  for 
advertising  piirposes.  Later,  in  1887,  by  an  order  in 
coimcil,  the  benefit  of  the  International  Copyright  Act 
was  extended  to  Germany  and  in  1892  the  plaint ifiE 
registered  as  the  proprietor  of  the  copyright  in  the 
painting  Lisette  in  England  and  thereafter  brought  an 
action  to  restrain  the  defendants  from  an  alleged  in- 
fringement of  his  copyright  by  continuing  to  use  their 
trade-mark. 

Justice  Chitty  held  that  the  defendants  became  pro- 
prietors of  the  trade-mark  before  December,  1887,  and 
had  acquired  lawfully  an  interest  therein;  that  this 
interest  arose  in  connection  with  the  trade-mark  itself 
and  was  protected  by  the  clause  in  §  6  of  the  Interna- 
tional Copyright  Act,  which  provides  that  such  act  shall 
not  operate  so  as  to  divest  any  rights  existing  prior 
to  its  taking  effect. 

Injunction  denied. 


200   English  and  Canadian  Court  Decisions 
Section  3. 

Property  Rights  and  Their 
Transfer. 

Common-Law  Property  in  Drama. 

Gilbert  v.  The  Star  Newspaper. 

Chancery  Division,  October,  1894. 
II  T.  L.  R.  4. 

On  motion  for  an  interim  injunction,  the  plaintiff 
showed  that  he  was  the  proprietor  of  a  comic  opera 
called  His  Excellency  which  had  been  in  course  of  re- 
hearsal for  about  six  weeks  and  had  been  advertised 
to  be  publicly  performed  at  the  Lyric  Theatre  on 
October  27,  1894.  The  plot  of  the  opera  was  original 
and  had  never  been  produced  in  public.  While  the  re- 
hearsals were  going  on,  the  defendant  published  an 
outline  of  the  play,  and  it  was  this  which  the  plaintiff 
sought  to  enjoin.  The  plaintiff  contended  that  it  was 
impossible  for  any  account  to  have  been  obtained  ex- 
cept by  breach  of  confidence  on  the  part  of  some  actor 
or  employee  of  the  theatre,  and  that  he  had  never 
authorized  any  of  the  actors  or  employees  to  give  out 
any  information  to  the  press,  and  that  it  was  essential 
that  the  new  play  should  not  be  disclosed  before  the 
first  performance,  as  the  plot  and  incidents  of  the  play 
might  be  telegraphed  to  the  United  States  with  a  view 
of  anticipating  the  first  production.  Chitty,  J.,  said 
that  the  groimd  upon  which  the  application  for  an 
injtmction  was  made  was  that  the  information  had  been 


Property  Rights  and  their  Transfer    201 

obtained  by  means  of  a  breach  of  confidence  on  the 
part  of  some  person  who  was  bound  to  silence.     He, 
therefore,  granted  the  injimction  asked  for. 
Motion  granted. 

Common-Law  Rights;  Unfair  Use. 

Louis  v.  Smellie. 

Coiirt  of  Appeal,  July,  1895. 
II  T.  L.  R.  515. 

The  plaintiff  was  a  process-server  and  brought  an 
action  to  restrain  the  defendant  from  appropriating 
the  forms  which  the  plaintiff  used  in  process  serving. 
It  appeared  that  the  plaintiff  kept  a  register  and  index 
of  his  agents,  "  of  whom  he  had  as  many  as  a  thousand," 
and  that  he  also  compiled  many  special  forms  of  docu- 
ments differing  from  those  previously  in  use.  In  the 
year  1886,  the  defendant  entered  his  service  as  a  clerk 
and  was  for  some  time  employed  by  the  plaintiff  in  the 
business  of  process  serving.  The  plaintiff  contended 
that  the  defendant  had  availed  himself  of  his  position  to 
make  extracts  from  the  plaintiff's  register  and  index  of 
agents  and  copies  of  the  plaintiff's  forms  and  that  he 
thereafter  set  up  a  business  of  his  own.  At  the  trial,  it 
did  not  appear  that  the  defendant  was  representing 
himself  as  carrying  on  the  plaintiff's  business  and  an 
injunction  was  refused,  but  five  poimds  damages 
awarded  to  the  plaintiff. 

On  appeal,  Lindley,  Lopes,  and  Rigby,  J.  J.,  held  that 
the  plaintiff  was  entitled  to  an  in j  unction .  The  defend- 
ant had  no  right  to  make  unfair  use  of  any  information 
which  he  had  acquired  while  acting  as  clerk.     The  good 


202   English  and  Canadian  Court  Decisions 

faith  that  existed  between  employer  and  employed 
rendered  it  improper  for  the  latter  to  use  information 
acquired  during  the  period  of  the  confidential  rela- 
tionship. Although  he  was  at  liberty  to  carry  on  his 
business  as  he  saw  fit,  he  did  not  have  the  right  to  use 
such  documents  as  the  plaintiff  alleged  that  he  had  in 
his  possession.  On  the  evidence,  the  Court  thought  that 
the  defendant  actually  had  copied  the  plaintiff's  register 
of  agents  and  probably  had  a  good  deal  more  in  the 
shape  of  memoranda  and  that  there  was  evidence  to 
justify  the  Court  in  granting  an  injimction  against  him. 
The  terms  of  the  injunction  were  to  restrain  the  defend- 
ant from  making  use  of  any  copies  or  extracts  from 
the  plaintiff's  register  or  index,  or  any  memoranda 
made  or  obtained  by  the  defendant  when  in  the  plain- 
tiff's employ.  This  was  as  far  as  the  Court  could  go. 
Judgment  denying  injunction  reversed. 

Property  in  Telegraphic  Reports. 

Exchange  Telegraph  Company  v.   Gregory  & 
Company. 

Court  of  Appeal,  October,  1895. 
(1896)  I  Q.  B.  D.  147. 

The  plaintiff  company  was  a  telegraphic  news  agency 
carrying  on  business  in  the  City  of  London.  By  an 
agreement  between  the  plaintiff  company  and  the 
Stock  Exchange,  the  former  had  the  privilege  for  many 
years  of  obtaining  quotations  in  stock  from  the  floor  of 
the  Exchange.  Information  as  to  buying  and  selling 
prices  was  collected  by  it  and  transmitted  to  the  com- 
pany's offices,  and  was  from  there  distributed  among 


Property  Rights  and  their  Transfer    203 

the  various  subscribers  by  electric  tapes.  Each  sub- 
scriber agreed  that  the  intelHgence  suppHed  him  should 
not  be  sold  or  communicated  to  imknown  subscribers. 
The  defendant  was  an  "outside  broker,"  and  having 
been  a  former  subscriber  to  the  plaintiff  company,  he 
knew  the  terms  of  their  contract.  In  1894,  the  plaintiff 
refused  to  accept  a  subscription  from  him,  and  there- 
after the  defendant  obtained  the  prices  from  the  com- 
pany's tape  from  one  of  its  subscribers  and  posted  it  on 
boards  and  other  places  in  his  office.  It  was  imani- 
mously  held  in  the  Court  of  Appeal  that  the  plaintifiE 
was  entitled  to  an  injimction  to  prevent  the  defendant 
from  appropriating  vinpublished  matter  before  it  ap- 
peared in  the  newspaper  published  by  the  plaintiff  and 
secondly  from  appropriating  the  same  matter  after  it 
appeared  in  such  paper  and  had  been  copyrighted,  and 
thirdly,  from  an  tmfair  competition  in  business. 
Injunction  granted. 

Property  in  Telegraphic  Reports. 

Exchange  Telegraph  Company  v.  Central  News 
AND  Others. 

Chancery  Division,  March,  1897. 

(1897.)     3  Ch.  Div.  48. 

The  plaintiff  was  a  telegraphic  news  agency,  which 
collected  news  of  various  sorts,  including  information  as 
to  horse  races,  which  it  commimicated  by  telegraph  to 
subscribers.  Each  subscriber  agreed  that  the  news 
supplied  by  the  company  was  to  be  used  only  in  the 
newspaper,  or  posted  only  in  the  club,  office,  or  other 
place  to  which  it  was  delivered  and  no  copy  of  it  was 
to  be  communicated  or  delivered  to  any  other  party. 
Certain  of  the  defendants  copied  racing  information 


204  English  and  Canadian  Court  Decisions 

which  had  been  obtained  by  the  plaintiff.  This  was 
proved  by  the  repetition  of  mistakes  made  in  the  plain- 
tiff's news  in  the  information  printed  by  certain  of  the 
defendants.  The  defendants  contended  that  informa- 
tion as  to  horse  racing  was  public  property,  and  that  as 
soon  as  it  was  transmitted  to  the  London  clubs  and 
hotels,  it  must  be  treated  as  published  in  London. 
Sterling,  J.,  held  that  as  the  information  was  not  made 
known  to  the  whole  world,  although  it  was  known  to  a 
large  number  of  persons,  and  as,  by  the  expenditure  of 
labor  and  money  the  plaintiffs  had  acquired  this  infor- 
mation, it  was  valuable  property  in  their  hands.  They 
were  at  liberty  to  communicate  that  information  upon 
such  terms  as  they  saw  fit,  and  if  a  subscriber  communi- 
cated it  to  third  persons  contrary  to  those  terms,  he 
would  commit  a  breach  of  contract  and  might  be  re- 
strained by  an  injimction  from  so  doing,  and  a  third 
person  who  might  endeavor  to  induce  a  subscriber  to 
break  his  contract  and  in  that  way  acquire  and  publish 
information  might  also  be  restrained  by  an  injunction. 
The  Court  thought  that  the  evidence,  however,  was  not 
sufficient  as  against  the  defendant,  the  Central  News, 
but  it  granted  an  injunction  against  the  defendant,  the 
Column  Printing  Telegraph  Syndicate. 
Injunction  granted. 

License;  Extent  of  Use  Permitted. 

Neale  v.  Harmer. 

Chancery  Division,  February,  1897. 
13  T.  L.  R.  209. 

The  plaintiff,  an  architect,  was  the  author  of  a  work 
entitled  The  Abbey  Church  of  St.  Alban.     This  was  pub- 


Property  Rights  and  their  Transfer    205 

lished  in  1887  and  contained  about  two  hundred  draw- 
ings of  the  details  of  the  Abbey  in  its  original  state 
before  restoration.  The  work  was  duly  copyrighted. 
The  defendant,  the  editor  of  a  magazine  entitled, 
Architecture,  applied  to  the  plaintiff  for  permission  to 
copy  certain  parts  of  his  work.  Neale  gave  permission 
to  the  editor  to  copy  the  groimd  plan  of  the  Abbey  from 
his  work,  but  declined  to  allow  him  to  use  any  of  the  rest 
of  his  work  unless  he,  the  plaintiff,  wrote  the  accom- 
panying article.  The  defendant,  however,  in  a  subse- 
quent number  of  the  magazine  published  a  long  article 
upon  the  Abbey  illustrated  not  only  with  the  groimd 
plan,  but  also  with  three  reduced  drawings  from  the 
plaintiff's  work.  On  a  motion  for  an  interim  injimction 
Kekewich,  J.,  held  that  the  defendant  had  no  right  to 
take  these  drawings  and  incorporate  them  in  a  work  of 
his  own.  The  defendant  was  availing  himself  of  the 
plaintiff's  industry  and  knowledge,  and  although  he 
had  a  license  to  use  the  ground  plan,  that  did  not  cover 
the  three  drawings. 

An  injunction  granted,  hut  not  as  to  the  ground  plan. 

Use  Unauthorized  by  License. 

Guggenheim  v.  Leng  &  Co. 

Queen's  Bench  Division,  Jtine,  1896. 
la  T.  L.  R.  491. 

The  plaintiff  took  a  photograph  of  a  well-known 
football  team  and  registered  the  same  for  copyright. 
The  defendants,  the  editors  of  Sports,  a  penny  pa- 
per, applied  to  the  plaintiff  for  a  photograph  to  be 
published  in  their  paper.  The  plaintiff  supplied  them 
with  a  print  for  the  sum  of  one  guinea.     The  defendants 


2o6   English  and  Canadian  Court  Decisions 

decided  that  the  photograph  would  look  better  on  a 
separate  sheet  than  in  the  body  of  the  paper,  and  there- 
fore published  it  on  a  single  sheet,  blank  on  the  back,  as 
a  supplement  with  the  paper  of  Saturday.  On  an  ap- 
peal from  the  Cotmty  Coiirt,  Cave  and  Wills,  J.  J.,  held 
that  there  was  no  valid  groimd  of  complaint  in  the  fact 
of  the  supplement  being  published  on  a  separate  sheet 
and  being  sold  with  the  paper ;  but  the  defendants  had 
gone  beyond  what  they  were  entitled  to  do  when  they 
sold  the  supplement  with  the  picture  as  a  distinct  thing 
separate  from  the  paper.  That  gave  them  an  oppor- 
ttinity  of  selling  many  more  pictures  than  they  would 
otherwise  have  done.  It  was  much  easier  to  multiply 
and  distribute  the  single  sheets  than  the  papers. 
Judgment  for  the  defendant  reversed. 

Use  Unauthorized  by  License. 

NiCHOLLs  V.  Parker. 

King's  Bench  Division,  May,  1901. 
17  T.  L.  R.  483. 

The  plaintiff  was  the  proprietor  of  a  registered  photo- 
graph. He  was  a  photographer  in  business  in  Johan- 
nesburg, and  supplied  the  defendants,  who  were  the 
proprietors  of  The  Daily  Graphic  and  The  Golden  Penny, 
with  photographs  from  time  to  time.  With  the  photo- 
graph in  question  he  gave  a  written  license  under  which 
the  defendants  were  permitted  to  reproduce  it  in  the 
Graphic,  but  not  in  the  other  paper.  The  photograph 
appeared  in  The  Golden  Penny.  Wright,  J.,  gave 
judgment  for  the  plaintiff  and  said  that  he  was  the 
registered  proprietor  of  the  photograph  and  gave  the 
defendant  the  right  to  use  it.     The  defendant  published 


Property  Rights  and  their  Transfer    207 

it  in  the  paper  mentioned  in  the  license  and  also  in 
another  paper  belonging  to  him  without  the  plaintiff's 
consent.  The  defendant  was  held  liable  to  pay  dam- 
ages, which  were  assessed  at  one  farthing  each  for  the 
82,000  copies.  Although  the  defendant  argued  that 
the  plaintiff  had  acquiesced  in  the  use  made  of  the 
photographs  in  controvention  of  the  license,  the  evi- 
dence failed  to  sustain  this  contention. 
Judgment  for  plantiff. 

Assignment  of  Copyright. 

Dennison  v.  Ashdown. 

Queen's  Bench  Division,  February,  1897. 
13  T.  L.  R.  226. 

Plaintiff  claimed  that  she  had  obtained  a  copyright 
upon  an  English  translation  of  the  opera  The  Hugue- 
nots by  an  assignment  of  one  Wall,  who  derived  it 
from  the  executors  of  Romer,  the  translator.  The 
defendant  proved  at  the  trial  that  the  firm  of  which  he 
was  a  member  purchased  the  copyright  at  an  auction 
sale  in  1872.  At  this  sale  Romer  was  present  and  told 
the  defendant  Ashdown  that  he  paid  too  much  for  the 
copyright.  From  1872  to  1889,  when  he  died,  Romer 
never  objected  to  the  defendant's  publishing  and  con- 
trolling the  translation.  The  Court  held  on  the  evi- 
dence that  the  copyright  had  been  assigned  to  the 
defendant,  although  there  was  no  proof  in  writing. 

Bruce,  J.,  said:  **  Having  regard  to  these  facts,  I  can- 
not doubt  that  Mr.  Romer  in  his  lifetime  parted  with 
his  right  of  copyright  in  the  words  of  his  translation, 
and  that  the  persons,  whom  I  have  mentioned,  became 
the  successive  purchasers  of  the  copyright  and  sold  the 


2o8   English  and  Canadian  Court  Decisions 

sheet  music  with  the  EngHsh  words  for  a  long  course  of 
years  without  any  interruption  or  claim  on  behalf  of 
Mr.  Romer  or  any  one  on  his  behalf.  The  point  is  made 
on  behalf  of  the  plaintiff  that  the  copyright  could  not 
pass  without  an  assignment  in  writing,  and  there  is  no 
evidence  to  prove  any  assignment  in  writing  was  ever 
made.  The  question  is  whether  after  a  long  course  of 
dealing,  such  as  I  have  described,  I  ought  not  to  draw 
the  inference  that  everything  was  regularly  done  to 
carry  out  what  I  am  satisfied  was  the  intention  of  the 
parties.  ...  I  think  that  I  am  botmd  to  draw  the 
inference  that  Mr.  Romer  assigned  his  copyright  in  a 
proper  and  legitimate  way." 
Judgment  for  defendant. 

Sale  of  Plates  Not  a  Transfer  of  Copyright. 

Cooper  v.  Stephens. 

Chancery  Division,  February,  1895. 
(1895)  I  Ch.  Div.  567. 

This  action  was  brought  to  restrain  the  defendant 
from  printing  and  selling  any  print  copied  from  any 
illustrations  in  the  plaintiffs*  catalogues  of  carriages. 
Plaintiffs  drew  designs  for  carriages,  which  they  sup- 
plied to  persons  in  the  trade  for  advertisements  and 
other  purposes.  Occasionally  where  their  customers 
wished  to  print  the  designs  themselves,  they  supplied 
electrotypes  of  the  illustrations  to  be  used.  In  this  man- 
ner they  supplied  two  electrotypes  to  one  S.  J.  Lilley,  a 
carriage  builder,  who  used  the  types  for  his  own  adver- 
tisements, and  afterwards  allowed  the  defendant  to 
print  from  them.     There  was  no  written  license  from 


Infringement  209 

the  plaintiffs  to  Lilley  or  from  him  to  the  defendants. 
The  defendants  contended  that  the  sale  of  the  plates  to 
Lilley  conferred  the  copyright  in  them  upon  him  and 
was  not  merely  a  license  to  use  them,  and  also  that  no 
substantial  part  of  the  plaintiffs'  book  had  been  taken 
by  the  defendants.  Romer,  J.,  held  that  the  sale  of 
the  electrotypes  could  not  have  the  effect  of  an  assign- 
ment of  a  copyright,  and  that  the  intent  of  the  trans- 
action between  the  plaintiff  and  Lilley  was  merely  to 
authorize  the  latter  to  print  from  such  electrotypes  for 
the  purpose  of  his  advertising  in  the  trade  and  was  only 
a  license.  As  to  the  other  groimd  of  defence  it  was 
held  that  the  defendants  by  using  the  drawings  com- 
plained of  for  the  very  purpose  for  which  the  originals 
were  made  by  the  plaintiffs,  and  so  as  to  escape  making 
any  payment  in  respect  to  them,  infringed  the  copy- 
right, and  if  they  were  allowed  to  do  so  with  impunity, 
the  plaintiff's  copyright  would  be  practically  valueless. 
Injunction  granted. 


Section  4. 

Infringement. 

Infringement  of  Copyriglit  in  Text- Book. 

MoFFATT  V.  Gill. 

Court  of  Appeal,  April,  190a. 
18  T.  L.  R.  547. 

The  plaintiffs  published  in  1893  an  edition  oi  As  You 
Like  It  for  school  use.     The  defendant,  Gill,  published 


2IO   English  and  Canadian  Court  Decisions 

an  edition  of  As  You  Like  It  in  1898,  which  was  anno- 
tated by  the  defendant,  Marshall.  An  action  was 
brought  for  an  injunction  in  which  it  was  alleged  that 
the  defendants'  edition  of  the  play  was  an  infringement 
of  the  plaintiffs'.  The  defendants  in  this  first  suit  con- 
sented to  the  entry  of  an  order  directing  them  to  pay 
damages  and  destroy  the  edition  published  by  them. 
The  defendant,  Marshall,  then  wrote  a  second  edition, 
which  was  published  by  the  defendant  publishers. 
The  plaintiffs  complained  that  this  too  was  an  imita- 
tion of  their  book.  It  appeared  on  the  trial  that  the 
second  edition  by  Marshall  was  prepared  for  press  by 
merely  marking  the  places  in  the  first  edition  which 
were  to  be  omitted  in  the  second  edition.  At  the  trial 
the  Court  thought  that  it  was  not  permissible  to  look  at 
the  first  edition  or  take  into  consideration  as  to  whether 
or  not  that  was  an  infringement,  and  consequently  the 
evidence  of  the  method  in  which  the  second  edition  was 
prepared  had  no  effect  in  determining  that  case.  On 
appeal  to  the  Court  of  Appeal,  it  was  held  that  the 
Court  was  at  liberty  to  take  into  consideration  all  the 
evidence  showing  in  what  way  the  defendant  Marshall 
had  composed  the  work,  and  that  it  was  apparent  that 
the  second  edition  was  practically  a  repetition  of  the 
first,  omitting  certain  points,  and  that  there  was  ample 
evidence  that  the  first  edition  was  an  imitation;  the 
second  edition  did  not  change  the  general  arrangement 
nor  the  sketches  of  character  nor  the  literary  notes  in- 
cluded in  the  original  book  to  any  material  extent. 
The  Cotirt  of  Appeal  held  that  the  plaintiffs  were 
entitled  to  injimction  and  the  appeal  was  allowed  with 
costs. 

Injunction  granted. 


Infringement  211 

Infringement  of  Photographic  Copyright, 

Bolton  v.  Aldin,  et  al. 

Queen's  Bench  Division,  May,  1895. 
63  L.  J.  Q.  B.  1 30. 

The  plaintiff  was  the  proprietor  of  a  copyright  of  an 
original  photograph  of  a  tiger.  The  defendant,  Aldin, 
copied  the  plaintiff's  photograph  by  making  a  drawing 
thereof,  which  he  sold  to  the  other  defendants,  who 
printed  it  in  a  weekly  paper  called  the  Sketch.  The 
plaintiff  sued  for  an  injunction  and  damages  against 
both  Aldin  and  the  publishers.  The  defendants  con- 
tended that  the  drawing  was  not  an  infringement  be- 
cause it  was  not  of  exactly  the  same  size  as  the  plaintiff's 
photograph.  It  was  held  by  Grantham,  J.,  that  the 
picture  in  the  Sketch  was  a  pure  copy  of  the  plaintiff's 
photograph  and  that  the  artist  had  no  right  to  take  the 
picture  and  produce  it  as  his  own.  The  Court  drew 
the  distinction  between  reproducing  an  idea  which  an 
artist  may  obtain  from  some  copyrighted  work  or  which 
is  suggested  by  the  production  of  another,  and  a  mere 
copy  of  the  work  itself. 

Judgment  for  plaintiff. 

Living  Pictures  Not  Infringing  Copies. 

Hanfstaengl  v.  Baines  &  Company. 

House  of  Lords,  December,  1894. 

(1895.)  A.  C.  ao. 

The  appellant  was  the  owner  of  a  copyright  in  cer- 
tain pictures  painted  in  Germany.     At  the  Empire 


212   English  and  Canadian  Court  Decisions 

Palace  in  London,  representations  were  given  of  these 
pict\ires  by  groups  of  living  persons,  and  sketches 
of  these  living  pictures  were  published  by  the  respon- 
dent, the  Daily  Graphic,  with  explanations  thereof.  On 
a  motion  for  an  injunction  against  the  Empire  Palace 
the  Court  of  Appeal,  affirming  the  decision  of  Sterling, 
J.,  held  that  the  living  pictures  were  not  an  infringe- 
ment. On  motion  for  an  injunction  against  the  pro- 
prietors of  the  Graphic  Mr.  Justice  Sterling  granted  an 
interim  injimction,  which  was  discharged  by  the  Court 
of  Appeal,  and  from  that  decision  of  the  Court  of  Ap- 
peal the  plaintiff  appealed.  The  House  of  Lords  held 
that  the  sketches  made  for  the  newspaper  and  published 
therein  did  not  constitute  an  infringement  of  the  ''de- 
sign '*  as  that  term  is  used  in  the  English  statute.  The 
plaintiff  contended  that  the  living  pictures  in  the 
theatre  were  copies  of  the  painting  of  which  he  held 
the  copyright,  and  the  sketches  published  in  the  paper 
were  copies  of  these  copies.  The  Court  thought  that  on 
the  evidence  it  was  not  accurate  to  call  the  pictures 
copies  of  the  paintings.  The  instance  most  favorable 
to  the  plaintiff's  case  was  the  painting  entitled  Court- 
ship, where  there  was  a  resemblance  between  the  sketch 
and  the  painting.  In  each  case  a  young  man  and  a 
yoting  woman  were  standing  alongside  one  another, 
close  to  a  stile  over  a  fence,  but  the  faces  were  different 
in  the  painting  and  in  the  sketch  and  the  mode  in  which 
the  woman's  hair  was  arranged,  the  dress  of  both 
figtires,  their  pose,  and  the  backgroimd  were  different. 
In  all  these  particulars  the  artist's  design  was  not  copied 
by  the  living  pictures,  or  by  the  sketch  in  the  paper. 
It  was  held  that  there  was  no  infringement. 

Decision  of  Court  of  Appeal  discharging  injunction 
affirmed. 


Infringement  213 

Unauthorized  Use  of  License. 

Green  v.  The  Irish  Independent. 

Court  of  Appeals,  February,  1899. 

(1899.)  I  R.  386, 

The  plaintiff  was  a  printer  doing  business  at  Leeds  as 
a  publisher  of  pictorial  advertisements.  An  artist  in 
his  employ  made  the  design  in  question  and  the  plaintiff 
registered  the  copyright  as  proprietor.  This  design 
appeared  on  a  large  poster  which  the  plaintiff  prepared 
for  Todd-Bums  &  Company  of  Dublin.  Subse- 
quently the  plaintiff  also  prepared  for  them  a  sketch 
for  a  small  handbill  which  was  a  reduced  copy  of  the 
poster.  The  manager  of  this  firm,  without  the  plain- 
tiff's consent,  sent  the  sketch  prepared  for  the  smaller 
handbill  to  the  office  of  the  defendant,  with  an  order  to 
publish  it  as  an  advertisement,  which  the  newspaper 
did  in  complete  ignorance  of  the  plaintiff's  rights. 
The  plaintiff  made  a  claim  for  the  infringement  of  his 
copyright  against  the  newspaper  and  against  Todd- 
Bums  &  Company.  The  defendant  newspaper  con- 
tended that  it  was  not  liable  because  it  acted  in  good 
faith  and  without  knowledge  of  the  plaintiff's  rights. 
On  appeal  it  was  held,  reversing  the  decision  of  the 
lower  court  and  with  one  justice  dissenting,  that  the 
defendant's  act  constituted  an  infringement  and  that 
the  plaintiff  was  entitled  to  a  penalty  in  respect  to  each 
copy  of  the  newspaper  containing  the  reproduction  of 
the  design.  Under  the  statute  it  was  not  a  question  as 
to  the  bad  or  good  faith  of  the  defendant,  and  the 
license  to  Todd-Bums  &  Company  did  not  include  the 
right  to  reproduce  the  poster  in  newspapers. 

Judgment  for  plaintiff. 


214  English  and  Canadian  Court  Decisions 

Infringement.    Substantial  Appropriation. 

Bolton  v.  London  Exhibition  Company. 

Queen's  Bench  Division,  July,  1898. 
14  T.  L.  R.  550. 

The  defendant  ordered  from  a  lithographer  a  poster 
to  advertise  his  exhibitions  at  Earl's  Court.  He  gave 
the  lithographer  a  general  idea  of  what  was  required 
and  told  him  to  do  his  best.  The  latter  copied  a  photo- 
graph of  a  lion  on  which  the  plaintiff  had  a  copyright. 
The  attitude  and  almost  all  of  the  peculiar  character- 
istics of  the  photograph  were  reproduced  in  the  poster. 
The  defendant  contended  that  he  had  only  taken  the 
outlines,  and  that  the  details  of  the  poster  were  filled  in 
from  pictures  in  a  natural  history. 

Mathew,  J.,  held  that  there  had  been  a  reproduc- 
tion of  the  photograph  and  that  a  work  of  art  had  been 
"vulgarized"  unlawfully,  but  the  defendant,  the  Lon- 
don Exhibition,  was  not  held  liable  as  it  was  thought 
that  imder  the  statute  it  had  not  **  caused  or  procured" 
the  infringement. 

Judgment  for  defendant. 

Perforated  Rolls  of  JEoWan  Not  Infringe- 
ments. 

BoosEY  V.  Whight. 

Cotirt  of  Appeal,  December,  1899. 
(1899.)  I  Ch.,  836;   (1900)  I  Ch.  122. 

This  was  an  action  by  the  proprietors  of  the  copy- 
right in  the  words  and  music  of  three  songs  for  an  in- 
junction to   restrain   the  defendants  from  infringing. 


Infringement  215 

The  infringement  alleged  was  that  the  defendant  sold 
for  use  in  a  mechanical  wind  instrument,  called  an 
aeolian,  perforated  rolls  of  paper,  which  represented  the 
instrumental  music  of  the  songs  referred  to.  These 
rolls  were  inserted  in  the  instnmient  and  were  tinrolled 
by  its  action,  and  the  passage  of  air  through  the  slots  in 
the  roll  into  the  pipes  of  the  instrument  produced  musi- 
cal sounds,  the  pitch  and  duration  of  which  were  deter- 
mined by  the  position  and  length  of  the  slots.  In  the 
margin  of  some  of  the  rolls  were  printed  directions  as  to 
time  and  expression,  which  were  also  to  be  found  in  the 
plaintiff's  songs.  At  the  trial  Sterling,  J.,  held  that 
this  was  not  an  infringement  since  it  was  impossible  to 
read  these  rolls  in  the  same  way  as  an  ordinary  sheet  of 
music  and  they  conveyed  no  idea  of  music  even  to  per- 
sons able  to  read  musical  notation,  and  although  it 
might  be  possible  to  learn  the  scheme  according  to 
which  the  perforations  were  made  so  as  to  be  able  to 
read  the  notes  so  expressed,  it  is  not  shown  that  that 
had  been  done.  The  trial  judge  thought,  however, 
that  in  taking  the  words  from  the  plaintiff's  music 
sheets  for  the  purpose  of  indicating  to  the  player  on  the 
instnmient  the  pace  and  expression  at  and  with  which 
music  ought  to  be  played,  the  defendants  had  gone 
beyond  their  rights,  and  that  to  that  extent  they  had 
infringed  the  copyright. 

On  appeal  this  decision  was  upheld  by  the  Court  so 
far  as  it  related  to  the  question  whether  the  music  roll 
was  a  copy  of  a  sheet  of  music.  It  was  thought  that 
the  word  **  copy  "  would  not  include  such  a  mechanical 
device  whereby  the  music  might  be  played  or  that  a 
perforated  sheet  could  be  a  copy  of  a  sheet  of  music 
within  the  meaning  of  the  copyright  act.  The  opinion 
of  the  lower  court  was  overruled,  however,  with  respect 


2i6   English  and  Canadian  Court  Decisions 

to  the  directions  copied  from  the  plaintiff's  sheets  of 
music.  These  directions  were  held  not  to  be  '*a  sheet 
of  music"  nor  "a  sheet  of  letter  press  separately  pub- 
lished"; they  were  mere  words,  not  sentences  forming 
a  literary  composition  in  which  copyright  could  be 
acquired. 

Judgment  of  trial  court  modified. 

Infringement  of  Stage  Rights. 

Duck  v.  Mayer. 

Queen's  Bench  Division,  February,  1892. 
8  T.  L.  R.  339. 

The  defendant,  an  actress,  was  engaged  by  the  Rev. 
F.  Wills  to  play  a  certain  drama.  Our  Boys,  for  the 
benefit  of  a  cadet  corps.  She  went  to  the  agent  of  the 
plaintiff,  who  held  the  copyright  on  the  play,  and  asked 
permission  to  produce  the  same,  stating  that  she  was  to 
play  in  music  halls  in  London.  Permission  was  given 
her  on  condition  that  she  pay  one  guinea.  Mr.  Wills 
agreed  to  pay  this  sum,  but  for  some  reason  omitted  to 
do  so.  The  play  was  given  for  the  benefit  of  the  charity, 
and  the  plaintiff  then  learned  that  it  was  not  produced 
in  music  halls  and  demanded  five  guineas.  An  action 
was  brought  for  the  statutory  penalty.  Day,  J.,  gave 
judgment  for  the  plaintiff  and  said  that  people  who  play 
without  paying  must  take  the  consequences.  The  de- 
fendant had  represented  and  caused  to  be  represented 
the  play,  and,  according  to  the  law,  each  and  every  one 
who  took  part  in  the  performance  came  within  the 
statute.  The  license  granted  did  not  cover  the  use 
made  of  the  play,  and  the  copyright  was  therefore 
infringed. 

Judgment  for  plaintiff. 


Remedies  217 

Section  5. 

Remedies. 

Importation  Under  International  Copyright. 

Pitt  Pitts  v.  George  &  Company. 

Chancery  Division,  July,  1896. 
(1896.)  a  Ch.  D.  866. 

The  plaintiff  in  this  case  applied  for  an  injunction  to 
restrain  the  defendant  from  importing  into  England 
copies  of  a  piece  of  music  printed  in  Leipzig,  where  the 
original  publication  took  place.  The  plaintiff  had  the 
British  international  copyright,  and  the  copies  were 
printed  by  a  person  who  held  the  German  copyright. 
One  F.  Ries  of  Dresden,  who  was  entitled  to  the  copy- 
right in  the  composition  called  La  Fileuse,  assigned  to 
a  London  firm  his  copyright  in  England.  The  work 
was  entered  and  registered  at  Stationers'  Hall  in  the 
name  of  the  assignee,  to  whose  business  the  plaintiffs 
had  succeeded.  The  defendant,  who  was  carrying  on 
business  under  the  name  of  George  &  Company,  sold 
in  England  various  copies  of  this  music,which  had  been 
printed  in  Leipzig  by  the  successors  of  Ries.  The  Court 
of  Appeal,  reversing  a  decision  of  Justice  Kekewich,  held 
that  the  plaintiff  was  entitled  to  an  injimction.  Sec- 
tion 10  of  the  International  Copyright  Act  prohibits  im- 
portation into  Great  Britain,  without  the  consent  of  the 
proprietor,  of  copies  printed  in  any  foreign  country  ex- 
cept that  in  which  the  book  was  first  published.  This 
section,  therefore,  does  not  form  a  complete  regulation 
as  to  the  importation  of  copies,  and  the  Court  held  that 


2i8   English  and  Canadian  Court  Decisions 

section  3  of  the  International  Act,  which  provides  that 
the  enactment  of  the  Copyright  Act  of  1842,  which  has 
no  reference  to  international  copyright,  shall  apply  to 
books  in  which  there  is  a  British  international  copy- 
right in  the  same  way  as  if  such  books  had  been  pub- 
lished in  England,  and  that  this  section,  therefore, 
made  sections  15  and  17  of  the  English  Copyright  Act 
applicable.  These  sections  prohibit  the  importation 
for  sale  of  any  copyrighted  book  and  are  practically 
incorporated  in  the  International  Act  by  reference  in 
section  3  of  the  latter. 

Judgment  of  trial  court  reversed. 

Author's  Rights  After  Sale  of  Copyright. 

Lee  v.  Gibbings. 

Chancery  Division,  August,  1892. 
8  T.  L.  R.  773. 

The  defendant  published  a  condensed  edition  of  the 
work  of  the  plaintiff,  of  which  he,  the  defendant,  owned 
the  copyright.  The  question  at  issue  was  whether  an 
author  who  has  sold  his  copyright  in  a  work  can  restrain 
the  purchaser  from  publishing  it  in  a  condensed  form 
without  stating  that  it  is  in  fact  a  condensation  of  such 
original  work.  The  plaintiff  at  the  request  of  the  pub- 
lisher and  at  an  agreed  price  prepared  an  edition  of 
The  Autobiography  of  Edward,  Lord  Herbert  of  Cherbury, 
together  with  introduction  and  notes.  A  number  of 
copies  were  issued,  but  the  book  did  not  sell  well.  The 
defendant,  Gibbings,  published  a  smaller  edition  of  the 
work,  omitting  the  introduction  and  other  material  sup- 
plied by  the  plaintiff,  but  giving  his  name  on  the  title- 
page  as  the  author.     The  plaintiff  applied  for  an  interim 


Remedies  219 

injunction  to  restrain  the  publisher  on  the  ground  that 
it  was  an  injury  to  his  reputation.  Mr.  Justice  Keke- 
wich  held  that  the  plaintiff's  remedy,  if  he  had  any,  was 
an  action  for  libel  and  that  the  Court  would  not  grant 
an  injunction  before  the  question  whether  this  was 
actually  a  libel  was  settled. 
Judgment  for  defendant. 

Injunction  Protecting  Future  Editions. 

Bradbury  v.  Sharp. 

Chancery  Division,  July,  1891. 
(1891.    W.N.  143. 

On  a  motion  for  a  temporary  injunction  the  plaintiffs, 
the  publishers  of  Punch,  showed  that  the  defendants, 
who  published  the  Ludgate  Monthly,  had  printed  imder 
the  heading  ''Advertisements"  an  illustration  taken 
from  Punch  of  a  little  boy  with  a  dog.  It  appeared  that 
only  one  number  (the  first  of  Punch)  had  been  registered 
imder  the  copyright  act.  Kekewich,  J.,  granted  the 
injtmction  and  said  that  he  saw  no  objection  to  the  in- 
junction extending  to  the  protection  of  future  ntmibers 
of  Punch. 

Injunction  granted. 

Against  Wliom  Injunction  Lies. 

French  v.  Day,  Gregory,  et  al. 

Queen's  Bench  Division,  Jime,  1893. 
9  T.  L.  R.  548. 

An  action  for  injunction  was  brought  to  restrain  the 
defendant  from  infringing  the  plaintiff's  rights  in  a 


220  English  and  Canadian  Court  Decisions 

drama  called  Lost  in  London.  It  was  alleged  that 
a  piece  called  The  Miner's  Wife  was  produced  in 
Birmingham,  which  was  a  copy  or  an  imitation  of  the 
plaintiff's  drama.  The  defendant,  Day,  was  the  pro- 
prietor and  Gregory  was  the  manager  of  the  theatre  in 
which  the  infringing  piece  was  produced.  Day  con- 
sented to  an  injunction  against  him,  but  Gregory,  the 
manager,  pleaded  that  he  was  not  liable  since  he  only 
received  instructions  to  produce  the  play  and  he  could 
not,  under  the  terms  of  his  engagement,  hire  or  dismiss 
actors  for  the  performance.  He  received  no  commis- 
sion or  other  advantage  from  the  production.  Ken- 
nedy, J.,  in  giving  judgment  said:  "I  think  that  I 
ought  not  to  hold  that  a  person  in  Gregory's  position 
represented  or  caused  to  be  represented  the  piece. 
The  whole  thing  was  carried  on  by  Day,  who  merely 
used  Gregory  as  his  mouthpiece." 

Judgment  against  the  defendants,  except  Gregory, 


Cases. 


aax 


American  Cases. 

A. 

PAGE. 

Amberg  File  &  Index  Co.  v.  Shea,  Smith,  &  Co.,  82 

Fed.  R.  314 33 

American  Press  Assn.  v.  Daily  Story  Pub.  Co.,  120 

Fed.  R.  766 73 

American  Trotting  Register  Assn.  v.  Gocher,  70  Fed. 
R.  237 21 


B. 


Barnes  v.  Miner,  122  Fed.  R.  480 
Belford  v.  Scribner,  144  U.  S.  488 
Bennett  v,  Boston  Traveler  Co.,  10 1  Fed. 
Bennett  v.  Carr,  96  Fed.  R.  213 
Black  V.  H.  G.  Allen  Co.,  56  Fed.  R.  764 
Bleistein  v.  Donaldson  Lith.  Co.,  188  U.  S 
Bloom  V.  Nixon,  125  Fed.  R.  977 
Bolles  V,  Outing  Co.,  175  U.  S.  262    . 
Brady  v.  Daly,  175  U.  S.  148     . 
Broder  v.  Zeno  M.  Co.,  88  Fed.  R.  74 
Bumell  V.  Chown,  69  Fed.  R.  993 


C. 


Carlisle  v.  Colusa  County,  57  Fed.  R.  979 

Champney  v.  Haag,  121  Fed.  R.  944 

Child  V.  N.  Y.  Times  Co.,  no  Fed.  R.  527 

Cleland  v.  Thayer,  121  Fed.  R.  71 

Colliery    Engineer    Co.    v.    United    Correspondence 

Schools,  94  Fed.  R.  152 

223 


• 

35 

. 

118 

R.  445 

.  166 

. 

•   59 

. 

51 

>.  239 

39 

. 

136 

. 

62 

. 

129 

. 

43 

•    •    " 

23 

36 

. 

132 

7 

170 

. 

27 

116 


224 


American  Cases 


PAGE. 

Colliery  Engineer  Co.  v.  Ewald,  126  Fed.  R.  843  .  145 
Corbett  x;.  Purdy,  80  Fed.  R.  901       .         .         .         .  45n. 

p. 

Daly  V.  Walrath,  40  App.  Div.  220    .         .         .  .94 

Daly  V.  Webster,  56  Fed.  R.  483        .         .         .  .       48 

Dielman  2;.  White,  102  Fed.  R.  892    .         .         .  .114 

Doan  V.  American  Book  Co.  105  Fed.  R,  772  .  .  157 
Dodd  7;.  Smith,  144  Pa.  St.  340          ....     152 

Dodge  t;.  Allied  Arts  Co.,  (not  reported)    .         .  .115 

D'Ole  V.  Kansas  City  Star  Co.,  94  Fed.  R.  840  .       92 

Drummond  v.  Altemus,  60  Fed.  R.,  338     .         .  -155 

E. 

Edison  v.  Lubin,  122  Fed.  R.  240  ....  66 
Edw.  Thompson  Co.  v.  Amer.  Law  Bk.  Co.,  122  Fed. 

R.  922 147 

Edw.  Thompson  Co.  v.  Amer.  Law  Bk.  Co.,  119  Fed. 

R.  217 163 

Egbert  v.  Greenberg,  100  Fed.  R.  447  .  .  .  22 
Everson  v.  Young,  26  W.  L.  R.  546  .         .         .         -37 


Falk  V.  Brett  Lith.  Co.,  48  Fed.  R.  678      . 

Falk  V.  Curtis  Pub.  Co.,  98  Fed.  R.  989,  100  Fed.  R 

77,  107  Fed.  R.  126 

Falk  V.  Donaldson  Lith.  Co.,  57  Fed.  R.  32 

Falk  V.  Gast  Lith.  Co.,  48  Fed.  R.  262,  54  Fed.  R 

890 

Falk  V.  Heffron,  56  Fed.  R.  299 
Falk  V,  Schumacher,  48  Fed.  R.  222 
Fishel  V.  Lueckel,  53  Fed.  R.  499 
Eraser  v.  Yack,  116  Fed.  R.  285 
French  v.  Kreling,  63  Fed.  R.  621 
Frohman  v.  Weber,  (not  reported)     . 


26 

159 
126 

68 
171 

64 
124 
122 

98 
151 


American  Cases 


225 


PAOB. 

Fuller  V.  Bemis,  50  Fed.  R.  926  ....      34 

Gabriel  v.  McCabe,  74  Fed.  R.  743  .  .  .  .103 
Griggs  V.  Perrin,  49  Fed.  R.  15  .         .         .         -31 

H. 

Harper  z;.  Ganthony  (not  reported)  .  .  .  .138 
Harper  v.  Holman,  84  Fed.  R.  224,  86  Fed.  R.  481  .  149 
Harper  v.  Ranous,  67  Fed.  R.  904  ....  44 
Harrison  v.  Maynard  &  Co.,  61  Fed.  R.  689  .  .106 
Hefel  V.  Whitely  Land  Co.,  54  Fed.  R.  179  .  .65 
Henderson  v.  Tompkins,  60  Fed.  R.  758  .  .  .  42 
Heme  v.  Liebler,  73  App.  Div.  194  ....  100 
Higgins  V.  Keuffel,  140  U.  S.  428  ....  38 
Hills  V.  Austrich  Co.,  120  Fed.  R.  862  .  .  .61 
Hoertel  v.  Tuck,  94  Fed.  R.  844         .         .         .        .       64 

Holmes  V.  Hurst,  174  U.  S.  82 84 

Howell  V.  Miller,  91  Fed.  R.  129  .  .  .  .24 
Hoyt  V.  Bates,  81  Fed.  R.  641 164 

J. 

Jewelers'    Mer.  Agency  v.  Jew.  Pub.  Co.,  155  N.  Y. 

241 77 

J.  L.  Mott  Works  v.  Clow,  72  Fed.  R.  168,  82  Fed. 

R.  316 41 

K. 

Kipling  V.  Fenno,  106  Fed.  R.  692  .  .  .  •93 
Kipling  i;.  Putnam,  120  Fed.  R.  631  .         .         .     133 

Koppel  V.  Downing,  11  App.  Dist.  Col.  93  .         .102 


Ladd  V.  Oxnard,  75  Fed.  R.  703 
Lare  v.  Ha'rper,  86  Fed.  R.  481 


JS 


82 
149 


226 


American  Cases 


Larrowe-Loisette  v.  O'Loughlin,  88  Fed.  R.  896 
Lillard  v.  Sun  Pub.  Co.,  87  Fed.  R.  213     . 
Littleton  v.  O.  Ditson  Co.,  62  Fed.  R.  597 
Lorimer  v.  Boston  Herald  Co.  (not  reported)     . 


PAGE. 
80 

59 
156 


M. 


Mallory  v.  Mackaye,  86  Fed.  R.  122,  92  Fed.  R.  749 

Maloney  v.  Foote,  loi  Fed.  R.  264    . 

Maxwell  v.  Goodwin,  93  Fed.  R.  665 

McDonald  v.  Hearst,  95  Fed.  R.  656 

McLaughlin  v.  Tuck,  115  Fed.  R.  85 

Mead  v.  West,  80  Fed.  R.  380    . 

Merriam  v.  Famous  Shoe  Co.,  47  Fed.  R.  411 

Mifflin  V.  Button,  112  Fed.  R.  1004   . 

Miles  V.  Amer.  News  Co.  (not  reported) 

Monarch  Bk.  Co.  v.  Neil  (not  reported) 

Morrison  v.  Pettibone,  87  Fed.  R.  330 

Murphy  v.  Chris.  Press  Assn.,  38  N.  Y.  App.  Div.  426 

Mutual  Adv.  Co.  7;.  Refo,  76  Fed.  R.  961 


N. 


117 

131 
146 
162 

76 

142 

148 

86 

29 

30 
168 
112 

32 


National  Tel.  News  Co.  v.  West.  Union,  119  Fed.  R. 

294 46 

New  Jersey  St.  Dent.  Soc.  v.  Denta.  Co.,  57  N.  J. 

Eq.  593 99 


Osgood  V.  A.  S.  Aloe  Co.,  ^z  Fed.  R.  470 


57 


Patterson  v,  Ogilvie  Co.,  119  Fed.  R.  451  •         'So 

Pierce  &  Bushnell  Co.  v.  Werckmeister,  72  Fed.  R. 

54 70 


American  Cases  227 


PAGE. 


Press  Pub.  Co.  v.  Falk,  59  Fed.  R.  324      .         .         .     104 
Press  Pub.  Co.  v.  Monroe,  73  Fed.  R.  196  .         .       96 


Rigney  1'.  Button,  77  Fed.  R.  176     ....       84 
Rigney  z;.  Tuck,  77  Fed.  R.  173  .         .         .         -77 


S. 

Scribner  v.  H.  G.  Allen  Co.,  49  Fed.  R.  854 
Simms  v.  Stanton,  75  Fed.  R.  6 
Snowi;.  Laird,  98  Fed.  R.  813   . 
Snow  V.  Mast,  65  Fed.  R.  995    . 
Springer  Lith.  Co.  v.  Falk,  59  Fed.  R.  707 
Social  Reg.  Assn.  v.  Howard,  60  Fed.  R.  270 
Stanley-Bradley  Co.  v.  Leslie  (not  reported) 
Stem  V.  Rosey,  17  App.  Dist.  Col.  562 
Straus  V.  American  Pub.  Assn,  177  N.  Y.  473 
Stuart  V.  Smith,  68  Fed.  R.  189 


56 

143 
28 
62 
128 
153 
113 
132 
109 
158 


Tilton  V.  Jordan  (not  reported)  .         .         .         .154 

Tribune  Co.  v.  Assoc.  Press,  116  Fed.  R.  126      .         .       45 
Trow  Direct.  Co.  v.  Boyd,  97  Fed.  R.  586  .  146 

U. 

United  States  ex  rel.  Everson  v.  Young,  26  W.  L.  R. 

546 37 

V. 

Victor  Talking  Machine  Co.  v.  Fair,  123  Fed.  R.  424  107 n. 

W. 

Wagner  z;.  Conried  125  Fed.  R.  798  ...       89 

Werckmeister  i;.  Amer.  Lith  Co.,  117  Fed.  R.  360     .       73 


2  28  American  Cases 

PAGE. 

Werckmeister  v.  Amer.  Lith.  Co.,  126  Fed.  R.  244     .  75 

Werckmeister  v.  Pierce-Bush.  Co.,  63  Fed.  R.  445      .  73 

Werckmeister  v.  Springer  Lith.  Co.,  63  Fed.  R.  808  .  53 

West  Pub.  Co.  V.  Lawyers'  Pub.  Co.,  79  Fed.  R.  756  .  139 

Wheeler  v.  Cobbey,  70  Fed.  R.  487    ....  165 

Wright  V.  Eisle,  86  App.  Div.  356      ....  91 


English  and  Canadian  Cases. 


Bolton  V.  Aldin,  65  L.  J.  Q.  B.  120    . 
Bolton  V.  London  Exhibitions,  14  T.  L.  R 


Boosey  7;.  Whight  (1899),  i  Ch.  836;    (1900),  i  Ch 
122      ...... 

Bradbury  v.  Sharp,  1891,  W.  N.  143 

Church  V.  Linton,  25  Ont.  Rep.  131   . 

Collis  V.  Cater,  78  L.  T.  (U.  S.)  613    . 

Cooper  V.  Stephens  (1895),  i  Ch.  567 

Dennison  v.  Ashdown,  13  T.  L.  R.  226 

Duck  V.  Mayer,  8  T.  L.  R.  339  . 

Ellis  V.  Marshall,  11  T.  L.  R.  522 

Ellis  V.  Ogden,  11  T.  L.  R.  50    . 

Exchange  Tel.   Co.  v.  Gregory  (1896),    i    Q.    B.    D 

147 

Exchange  Tel.  Co.  v.  Central  News  (1897),  2  Ch.  48 
French  v.  Day,  9  T.  L.  R.  548  . 
Frowde  v.  Parrish,  27  Ont.  Rep.  526 
Geissendorf  v.  Mendelssohn,  13  T.  L.  R.  91 
Gilbert  v.  The  Star,  11  T.  L.  R.  4  • 
Green  v.  Irish  Independent  (1899),  i  R.  386 
Guggenheim  v.  Leng  &  Co.,  12  T.  L.  R.  491 
Hanfstaengl  v.  Amer.  Tob.  Co.  (1895),  i  Q.  B.  347 
Hanfstaengl  v.  Baines  &  Co.  (1895),  A.  C.  20 
Lamb  v.  Evans  (1893),  i  Ch.  218 
Lawrence  v.  Aflalo,  1904  A.  C.  17 
Lee  V.  Gibbings,  8  T.  L.  R.  773 
Leslie  v.  Young  (1894),  A.  C.  335 
Louis  V.  Smellie,  11  T.  L.  R.  515 
Moffatt  V.  Gill,  18  T.  L.  R.  547 
Morang  &  Co.  v.  Pub.  Syndicate,  32  Ont.  Rep.  393 

229 


550 


PAGE. 

211 
214 


214 
219 
189 
186 
208 
207 
216 
192 
192 

202 
203 
219 
194 

200 

205 
197 
211 
188 
190 
218 
187 
201 
209 
196 


230        English  and  Canadian  Cases 


Neale  v.  Harmer,  13  T.  L.  R.  209 
NichoUs  V.  Parker,  17  T.  L.  R.  482    . 
Petty  V.  Taylor  (1897),  i  Ch.  465 
Pitt  Pitts  V.  George  &  Co.  (1896),  2  Ch.  D 
Schauer^.  Field  (1893),  i  Ch.  35 
Strong  V.  Worskett,  12  T.  L.  R.  532 
Walter  v.  Lane  (1900),  A.  C.  539 
Walter  v.  Steinkopff  (1892),  3  Ch.  489 


PAGE. 

. 

204 

. 

206 

. 

193 

>.  866 

217 

198 

. 

185 

. 

183 

184 

Index 

A. 

PAGB 

Advance  sheets,  contract  for 

. 

123 

Advertisements          .         .         .         .32, 

38-41, 

92, 

189 

Advertising  poster     .... 

39, 

185 

iEolian,  perforated  rolls  of 

214 

Agent,  infringement  by      .         .         . 

. 

162 

Agreements  to  maintain  price    . 

106, 

109, 

112 

Alterations,  effect  of,  on  copyright     . 

I 

24-6 

Altering  painting        .... 

. 

115 

Architect's  plans,  publication  of 

. 

91 

Artist's  rights  in  his  productions 

1 14-5 

Assignment  of  copyright    . 

•  5 

»  5o» 

207 

eifect  on  author's  right 

. 

218 

effect  on  proprietorship 

. 

197 

of  right  to  obtain  copyright 

118, 

122, 

191 

sale  of  plates  not  an    . 

. 

208 

Author's  control  over  his  works 

93» 

i33» 

218 

Autocrat  of  the  Breakfast  Table  . 

B. 
Blank  books 

84 

37 

Blank  forms 

, 

, 

36 

Bottle  label 

C. 
Cartoons 

»        • 

• 

38 

166 

Catalogues 

, 

41, 

186 

Circular  tours 

. 

. 

187 

231 


232 


Index 


Circulars,  for  advertising   . 
Circus  posters    .... 
Commission,  works  executed  under 
Common  law  rights    . 
Compilations,  copyrights  in 
Composite  photograph 
Condition  precedent  to  suit 
Conflict  of  laws 
Contract  to  maintain  price 

works  done  by    . 
Control  over  copyrighted  works 

over  uncopyrighted  works 
**  Copy  "—defined       . 
Copy  of  a  copy  .         .         . 
Corporation,  infringement  by 

infringement  by  officer  of  . 

as  an  author  or  proprietor  . 
Credit  ratings,  copyright  in 
Cuts  and  engravings  . 


.     189 

•  39 
1 14-6 
200-2 

21-6,  83,  116,  139,  146 
.     128 
.     163 
.     197 
106,  109,  112 
1 14-6 
106 

•  93 
124,  169,  211,  214 

.     132 

158-9 

.         .         .     158 

.         .         .     163 

77,82 

.     166 


n. 


23. 


Damages,  measure  of 

punitive 
Dance,  no  copyright  in 
Delay  in  publication 
Deposit  of  copies 

of  description 

of  title 
Dictionary,  reprints  of 
Digests,  unfair  use  of 
Directory,  infringement  of 

unfair  use  of 
Drama,  impublished  manuscript 


127-8,  130 
.   97 
.   34 
.   69 
5,  9,  57,  120,  126 

.   59 

48,  50-1,  56 

.  148 

.  139 

.   131,  188 

146 

98,  100 


Dramatic  compositions 
Dramatic  rights 


34-5,  48,  117,  129,  136, 


200 

138 


Index 


233 


E. 


Editions,  subsequent          .         .         .        , 
Electrotypes,  sale  of           ... 

9,  209,  219 

.     208 

use  of 

Employee,  works  done  by          .         .         . 

Encyclopaedia  articles 

Entry  for  copyright,  by  whom 

Essay,  rights  in  unpublished 

Etchings,  infringement  of           .         .         . 

Evidence,  admission  of      .         .         . 

.     113 

114-7,194 

51,  147,  190 

.     193 
.       99 

.     124 
.     128 

F. 

False  notice  of  copyright   . 

Fees  of  copyright  office 

Filing  system,  no  copyright  in  . 

Firm  name,  copyright  under 

Free  list  in  tariff,  importation  under 

Future  editions          .... 

.     76-7, 84 

7 

.       33 

.        .         .       56 

.         .         .     178 

.     219 

H. 


Husband's  rights  in  wife's  copyright 


118 


Illustrations,  defined          ... 

.       40 

contracts  for  use  of     . 

.     113 

in  newspapers     .... 

.     166 

protected    .         .         . 

29-30 

Imitations  and  parodies     .         .         .         . 

.         .     136 

Importation  of  copyright  works 

.     8,  I7S-9 

under  international  copyright     . 

.     217 

Index-file,  no  copyright  in 

•  .    3^ 

Infringement      .         .         .         .            35, 

124-158,  209-16 

by  agents 

.     162 

of  photographs   .... 

126-8 

234 


Index 


Inj-unctions  on  terms 

against  whom 
International  copyright 


•       83,  146 

.     219 

.  123,  195,  197-8,  217 


Jurisdiction  of  courts 


82,  154,  164 


K. 


Kinetoscope  roll,  copyright  in 


66 


Label,  no  copyright  in 

, 

.                .                 .                 .             38 

Law-books,  use  of      .         .         . 

.            139,    142,    147 

Lectures,  reports  of   . 

.         155 

Letter  file,  copyright  in 

.       33 

Lexicons,  importing  . 

.     177 

Liability  of  corporate  officers     . 

.         .         .         .     158 

for  acts  of  agent 

.     162 

Librarian  of  Congress,  bond  of 

3 

duties  of     . 

3,4,8 

report  of     . 

4 

License,  extent  of      .         .         . 

100-3,  204-7»  213,  216 

Limitations,  Statute  of 

50,  165 

Lithographs       .... 

.       61 

Little  Minister,  rights  in     .         . 

.     122 

Living  pictures,  no  infringement 

M. 
Magazine,  publication  in    . 

.     211 

.  84-9 

poster  not  part  of 

. 

.         .         .         .     185 

Maintaining 

. 

106,  109, 112 

'  *  Manufacturing ' '  clause 

6, 

50,  59,  61,  175,  178-9 

Manuscript,  rights  in 

, 

96-99,  146 

Maps,  copyright  in     . 

. 

.        .        .        .      65 

Mercantile  ratings 

• 

23,  77,82 

Index 


235 


Minister's  Wooing 
Music,  copyrights  in 
importation  of 


News,  property  in 
Newspaper,  copyright  in 
Notice,  of  copyright 
with  date  omitted 
publication  without 


N. 


O. 


Obtaining  of  copyright 

Officer  of  corporation,  liability  of 

P. 


PAGE 

.       86 

42-3,  59,  214 

•      175.  177 


.    46,  202-4 

45»  184 

9-10,  53,  58,  61-77 

62-65 

.  70-5 


48-61,  80,  118,  197-8 
.         .         .         .     158 


Paintings,  copyright  in 
Parodies  not  infringements 
Parsifal,  rights  in 
Part  of  work  protected 
Penalty 

extent  of     . 

under  §§  4964-5 
Persons  entitled  to  copyright 
Photographs,  copyright  in,  26-9,  53,  62,  64, 


106, 


50. 

39. 

109, 


composite   .... 

of  copy  of  copyright  work 
Plates,  sale  of  . 
Posters,  copyright  in 
Price  agreements 
Price  list,  copyright  in 
Printer's  liability  for  infringing  copyright  .  .121 
Procuring  copyright  .  .  48-61,80,118,197-8 
Professor  at  the  Breakfast  Table  .  .  .  .86 
Proof  of  recording  on  trial 163 


1 14-5 
,  136 

.   89 
.   48 
9.  63 
160 
165-6,  170 

4,  51-6 
68,  104,  126, 
171,  192,  211 

.  128 

.  132 
208 

i8S 
112 
186 


236 


Index 


Property  rights  in  copyright 

PAGE 
96-123 

in  photographs    . 

104 

under  international  copyright 

198-9 

"Proprietor"  defined 

54,  191-2,  195-7 

Publication  of  works 

55 »  70-96 

Quotation,  how  far  lawful 


184 


R. 

Racing  charts,  copyright  in 

Rebinding  cheap  editions 

Recording  title 

Register  of  copyright 

Registry,  by  whom    . 

Remedies  and  penalties 

Renewal  term    . 

Replevin  su.ts    . 

Replica,  not  a  copy   . 

Reports  of  lectures  and  speeches 

Restraint  of  trade,  agreements  in 

Restrictions  on  circulation  of  books 


22 

•  152 

7 
3 

•  193 
158-171 

•  4-5 
161,  168 

.  55 
155,  183 
106-111 

77-84 


S. 


Sale  of  loose  sheets    . 

of  plates 
Scene  of  play  infringed 
School  books,  unfair  use  of 
Scientific  works,  unfair  use  of 
Serial  publication 
Sheets,  sale  of    . 
Shorthand  system 
**  Social  Register,"  a  trade  mark 
Speeches,  reports  of  . 
Stage  rights 


106,  133 

50,  208 

49, 129 

.     157 

143-5 

84-9 

106,  133 

•       31 
.     153 
.     183 
138,  151,  200,  216 


Index 


•^n 


Statistical  charts 
Statutes,  U.  S.  Revised 

annotated,  copyright  in 

of  limitations 
Stenographic  system  . 
Subject  matter  of  copyright 
System,  no  copyright  in     . 


PAGE 

21-3,  56 

3 

24-5 

50,  165 

•  31 
4,  21-47 

•  31-3 


Tariff  of  1897,  importing  under 
Telegraphic  news 
Term  of  copyright 
Text-books,  unfair  use  of 
''Ticker"  tapes 
Time-tables,  copyright  in 
Titles  of  books,  use  of 
Trade  agreements 
Trade  catalogues 
Trade-marks 
Trade  name,  entry  under 
Trading  stamp  system 
Translations,  importation  of 
Trotting  records 


Unfair  competition 
Unfair  use 


U. 


V. 


.        .     178 
202-4 

•  4-5 
142-3,  147,  209-10 

.       46 
.     187 

44,  149,  i5i»  153 
.  106,  1 1 2-3 
41,  186,  188 

.      135,  153 
.         .       56 

•  32 
.     176 

21 


.       136,  148-157 
23»  47»  133-158,  200^1 


Variance  between  proof  and  pleading 

between  title  and  deposit    . 
Vaudeville  "sketch,"  no  copyright  in 
Vested  interest  in  picture 


.  29 
48-51 
.  35 
.     198 


JSoofts  tor  Htttbors 


Btttbora 
anb  Ubeir 
public  in 
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Ufmes 


AUTHORS  AND  THEIR 
PUBLIC  IN  ANCIENT 
TIMES    :::::: 

A  Sketch  of  Literary  Conditions  and  of  the 
Relations  with  the  Public  of  Literary  Pro- 
ducers, from  the  Earliest  Times  to  the  Fall 
of  the  Roman  Empire. 

By  GEO.  HAVEN  PUTNAM,  A.M. 


Third  Edition,  revised.     12°,  gilt  top. 


$1.50 


"  The  Knickerbocker  Press  appears  almost  at  its  best  in  the  deli- 
cately simple  and  yet  attractive  form  which  it  has  given  to  this  work, 
wherein  the  chief  of  a  celebrated  publishing  house  sketches  the 
gradual  evolution  of  the  idea  of  literary  property.  .  .  .  The  book 
abounds  in  information,  is  written  in  a  delightfully  succinct  and  agree- 
able manner,  with  apt  comparisons  that  are  often  humorous,  and  with 
scrupulous  exactness  to  statement,  and  without  a  sign  of  partiality 
either  from  an  author's  or  a  publisher's  point  of  view." — New  York 
Times. 

"  A  most  instructive  book  for  the  thoughtful  and  curious  reader. 
.  .  .  The  author's  account  of  the  literary  development  of  Greece 
is  evidence  of  careful  investigation  and  of  scholarly  judgment.  Mr. 
Putnam  writes  in  a  way  to  instruct  a  scholar  and  to  interest  the 
general  reader.  He  has  been  exceptionally  successful  in  describing 
the  progress  of  letters,  the  peculiar  environment  of  those  who  are  in- 
terested in  the  career  of  the  dramatist  and  the  philosopher,  and  that 
habit  of  mind  characteristic  of  Hellenic  Vd^.^''— Philadelphia  Press. 

"  The  work  shows  broad  cultivation,  careful  scholarly  research,  and 
original  thought.  The  style  is  simple  and  straightforward,  and  the 
volume  is  both  attractive  and  yaluaiAei.''^— Richmond  Times. 


G.  p.  PUTNAM'S  SONS,  New  York  and  London 


3Bool?s  tor  Hutbors 


Books  and  Their  Makers 
During  the  Middle  Ages 

A  Study  of  the  Conditions  of  the  Production 
and  Distribution  of  Literature  from  the  Fall 
of  the  Roman  Empire  to  the  Close  of  the 
Seventeenth  Century. 


By  GEO.  HAVEN  PUTNAM,  A.M. 


Two  volumes.     8°,  gilt  tops,  each 


S2.30 


CHIEF   CONTENTS 


Volume  I.    4y6-i6oo 

Part  I. — Books  in  Manuscript — The  Making  of  Books  in 
the  Monasteries — Some  Libraries  of  the  Manuscript  Period — 
The  Making  of  Books  in  the  Eariy  Universities — Book-Trade 
in  the  Manuscript  Period. 

Part  II. — The  Earlier  Printed  Books — The  Renaissance 
as  the  Forerunner  of  the  Printing-Press — The  Invention  of 
Printing  and  the  Work  of  the  First  Printers  of  Holland  and 
Germany — The  Printer-Publishers  of  Italy. 

Volume  II.     I ^00- 1  y 09 

The  Printer- Publishers  of  France — The  Later  Estiennes 
and  Casaubon — Caxton  and  the  Introduction  of  Printing 
into  England — The  Kobergers  of  Nuremberg — Froben  of 
Basel — Erasmus  and  his  Books — Luther  as  an  Author — 
Plantin  of  Antwerp — The  Elzevirs  of  Leyden  and  Amster- 
dam— Italy  :  Privileges  and  Censorship— Germany :  Privi- 
leges and  Book-Trade  Regulations — France  :  Privileges  and 
Censorship^  and  Legislation — England  :  Privileges,  Censor- 
ship, and  Legislation.  Conclusion  :  The  Development  of 
the  Conception  of  Literary  Property. 


3Booltd  anb 

Ubcfr 

Aaliers 

2>urfng  tbc 

ifti^Me 

Slges 


G.  P.  PUTNAM'S  SONS,  New  York  and  London 


J5ooks  tor  Hutbors 


TTbc  €Lttcem 

Hon  of 

Oop^rlgbt 


The  Question  of  Copyright 

Comprising  the  text  of  the  Copyright  Law  of 
the  United  States,  and  a  summary  of  the 
Copyright  laws  at  present  in  force  in  the 
chief  countries  of  the  world ;  together  with 
a  report  of  the  legislation  now  pending  in 
Great  Britain,  a  sketch  of  the  contest  in  the 
United  States,  1 837-1 891,  in  behalf  of  Inter- 
national Copyright,  and  certain  papers  on 
the  development  of  the  conception  of  lit- 
erary property  and  on  the  results  of  the 
American  law  of  189 1. 

COMPILED    BY 

GEO.  HAVEN    PUTNAM,  A.M., 

Secretary  of  the  American  Publishers'  Copyright  League. 

Second  Edition,  revised,  with  additions,  and  with  the  re- 
cord of  legislation  brought  down  to  March  1896.  Octavo, 
gilt  top $1.7^ 

CHIEF  CONTENTS 
The  law  of  Copyright  in  the  U.S.  in  force  July  1,  1895 — 
Directions  for  securing  Copyright — Countries  witli  which 
the  U.  S.  is  now  in  Copyright  relations — Amendments  to 
the  Copyright  Act  since  July  i,  1891 — History  of  the  con- 
test for  International  Copyright — Analysis  of  the  provisions 
of  the  Act  of  1891 — Summary  of  the  International  Copy- 
right cases  and  decisions  since  the  Act  of  1891 — Abstract  of 
the  Copyright  laws  of  Great  Britain,  with  a  digest  of  the 
same  by  Sir  James  Stephen — The  Monkswell  Copyright  bill 
of  1890,  with  an  analysis  by  Sir  Frederick  Pollock — The 
Berne  Convention  of  1 887 — Literary  Property  :  an  historical 
sketch — Statutory  Copyright  in  England,  by  R.  R.  Bowker 
— Cheap  Books  and  Good  Books  by  Brander  Matthews — 
Copyright  and  the  prices  of  Books — Summary  of  the  exist- 
ing Copyright  laws  of  the  worid  (March,  1896) — The  status 
of  Canada  m  regard  to  Copyright,  January,  1896. 

"  A  perfect  arsenal  of  facts  and  arguments,  carefully  elaborated  and 
very  effectively  presented.  .  .  .  Altogether  it  constitutes  an  ex- 
tremely valuable  history  of  the  development  of  a  very  intricate  right 
of  property,  and  it  is  as  interesting  as  it  is  valuable." — N.  Y.  Nation^ 


G.  P.  PUTNAM'S  SONS.  New   York  and  London 


JSoofts  for  Hutbors 


Authors  and  Publishers 

A    MANUAL    OF   SUGGESTIONS    FOR    BEGINNERS 
IN  LITERATURE 

Comprising  a  description  of  publishing  me- 
thods and  arrangements,  directions  for  the 
preparation  of  MSS.  for  the  press,  explana- 
tions of  the  details  of  book-manufacturing, 
instructions  for  proof-reading,  specimens  of 
typography,  the  text  of  the  United  States 
Copyright  Law,  and  information  concerning 
International  Copyrights,  together  with 
general  hints  for  authors.  By  G.  H.  P.  and 
J.  B.  P. 

Seventh  Edition,  re-written  with  additional  material. 
8%  gilt  top net,  ^7.75 

CHIEF  CONTENTS 

Part  I. — Publishing  arrangements — Books  published  at 
the  risk  and  expense  of  the  publisher — Books  published  for 
the  account  of  the  author,  i.  e.,  at  the  author's  risk  and 
expense,  or  in  which  he  assumes  a  portion  of  the  invest- 
ment— Publishing  arrangements  for  productions  first  printed 
in  periodicals  or  cyclopaedias — The  iiterary  agent — Authors' 
associations — Advertising — On  securing  copyright. 

Part  II. — The  Making  of  Books — Composition — Electro- 
typing — Presswork — Bookbinding — Illustrations. 

"  Full  of  valuable  information  for  authors  and  writers.  ...  A 
most  instructive  and  excellent  manual."— George  Wm.  Curtis  in 
Harier^s  Magazine. 
,  "  This  handy  and  useful  book  is  written  with  perfect  fairness  and 
I  abounds  in  hints  which  writers  will  do  well  to  'make  a  note  of.' 
.  .  ,  _  There  is  a  host  of  other  matters  treated  succinctly  and  lucidly 
which  it  behoves  beginners  in  literature  to  know,  and  we  can  recom- 
mend it  most  heartily  to  them." — London  Spectator. 


Butbore 

an^ 

publisbers 


G.  P.  PUTNAM'S  SONS,  New  York  and  London 


\ 


Hamlin,  A. 

S,,comp. 

no 

Copyrigh"t 

c  a.so8 

^,y 

M128262 

THE  UNIVERSITY  OF  CALIFORNIA  UBRARY 


